Opinion
Civil Action 21-215 J
10-19-2022
LARRY KERMIT RANKIN Plaintiff, v. JOHN WETZEL; FACILITY MANAGER ERIC TICE; LIEUTENANT MICHAEL CINKO; CO2 SERGEANT A. BORING; CO1 T. WALKER; and R.E. SHAFFER, Defendants.
The Honorable Kim R. Gibson United States District Judge
REPORT AND RECOMMENDATION
MAUREEN P. KELLY UNITED STATES MAGISTRATE JUDGE
I. RECOMMENDATION
Plaintiff Larry Kermit Rankin (“Rankin”) is a prisoner incarcerated at the State Correctional Institution Somerset (“SCI - Somerset”). He has been granted leave to proceed in forma pauperis and brings this pro se civil rights action pursuant to 42 U.S.C. § 1983 against Defendants John Wetzel (“Wetzel”), the Secretary of the Pennsylvania Department of Corrections, Eric Tice (“Tice”), the SCI - Somerset Facility Manager, Lieutenant Michael Cinko (“Cinko”), CO2 Sergeant A. Boring (“Boring”), CO1 T. Walker (“Walker”); and R.E. Shaffer (“Shaffer”) (collectively, “Defendants”). Rankin alleges that Defendants violated his civil rights under the Fourth Amendment by subjecting him to a visual body cavity strip-search without reasonable cause or protection from the view of inmates in an adjacent exercise yard. ECF No. 8.
Pending before the Court is Defendants' Motion to Dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim. ECF No. 15. For the following reasons, it is respectfully recommended that the motion be granted as to Shaffer, Wetzel, and Tice, but denied as to the remaining Defendants.
II. REPORT
A. FACTUAL AND PROCEDURAL BACKGROUND
The facts are derived from the Complaint and, at this stage of the litigation, are construed in the light most favorable to Plaintiff. Odd v. Malone, 538 F.3d 202, 205 (3d Cir. 2008).
Rankin alleges that on August 7,2019, he entered the SCI- Somerset exercise yard. Despite passing through a metal detector without activating an alert, Shaffer ordered him to stop for a random pat search. ECF No. 8 ¶ 9. Shaffer completed the search and, finding nothing, permitted Rankin to enter the yard. At that point, Rankin was instructed by Cinko to step to the side and wait with him while the remaining inmates entered the yard. Id. ¶ 10. Rankin inferred that he was suspected of being in possession of contraband and he voluntarily emptied his pockets. Once the yard transfer was complete, Cinko ordered Rankin to accompany Boring and Walker to a field house in the main yard. Id. ¶ 13.
The field house contains inmate and staff restrooms, storage for yard equipment and supplies, and water fountains. Rankin alleges that after entering the building, Cinko shook a can of mace in a threatening manner and ordered Rankin to strip. Id. ¶ 14. A visual body cavity search was conducted. This required Rankin to remove one piece of clothing at a time, and included a full visual search of Rankin's genitalia and two visual searches of his anus, with buttocks spread while he was bent over. Id. Rankin questioned the reason for the search and was told by Cinko, “because you're an inmate.” Id.
Rankin alleges that the search was conducted a few feet from an open door, with an unobstructed view to other inmates at a nearby basketball court. Id. ¶ 15.
Rankin asserts that prior to the incident at issue, Wetzel and Tice were on notice that SCI - Somerset staff employed “intimidation and threats to force prisoners to comply with unreasonable visual body cavity searches in public areas.” Id. ¶ 17. Despite notice of this ongoing conduct, neither administrator acted to prevent the harm Rankin suffered. Id. ¶ 18.
Rankin commenced this action on December 17, 2021, with an application to proceed in forma pauperis. ECF No. 1. Upon curing filing deficiencies related to service documents, the Complaint was filed. ECF Nos. 4-8. The Complaint sets forth one cause of action for the violation of Rankin's Fourth Amendment rights. ECF No. 7. As relief, Rankin seeks a judicial declaration that Defendants violated his rights by conducting a body cavity search without reasonable cause and without appropriate privacy measures. Rankin also seeks prospective injunctive relief precluding his transfer to another facility, requiring Defendants to refrain from retaliating against him, and to refrain from conducting strip searches in public settings. Rankin includes a claim for punitive damages. ECF No. 7 at 8.
Defendants accepted service of the Complaint and timely filed the pending Motion to Dismiss and Brief in Support. ECF Nos. 11-12, 15-16. Rankin has filed his Response to Defendants' Motion to Dismiss, ECF No. 27. The motion is ripe for consideration.
B. STANDARD OF REVIEW
In assessing the sufficiency of a complaint pursuant to a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the Court must accept as true all material allegations in the complaint and all reasonable factual inferences must be viewed in the light most favorable to the plaintiff. Odd, 538 F.3d at 205. The Court, however, need not accept bald assertions or inferences drawn by the plaintiff if they are unsupported by the facts set forth in the complaint. See Cal. Pub. Employees' Retirement Sys, v. 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 set forth as factual allegations. Bell Atlantic Corp, v. Twombly, 550 U.S. 544, 555 (2007). Rather, “[factual allegations must be enough to raise a right to relief above the speculative level.” Id. (citing Papasan v. Allain, 478 U.S. 265,286 (1986)). Indeed, the United States Supreme Court has held that a complaint is properly dismissed under Fed.R.Civ.P. 12(b)(6) where it does not allege “enough facts to state a claim to relief that is plausible on its face,” id. at 570, or where the factual content does not allow the court “to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); see also Phillips v. County of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008) (finding that, under Twombly, “labels and conclusions, and a formulaic recitation of the elements of a cause of action” do not suffice but, rather, the complaint “must allege facts suggestive of [the proscribed] conduct” and that are sufficient “to raise a reasonable expectation that discovery will reveal evidence of the necessary element[s]” of his claim).
Pro se pleadings and filings, “however inartfully pleaded,” must be held to “less stringent standards than formal pleadings drafted by lawyers.” Haines v. Kerner, 404 U.S. 519, 520 (1972). If the court can reasonably read pleadings to state a valid claim on which the litigant could prevail, it should do so despite failure to cite proper legal authority, confusion of legal theories, poor syntax and sentence construction, or the litigant's unfamiliarity with pleading requirements. Boag v. MacDougall, 454 U.S. 364 (1982); U.S, ex rel. Montgomery v. Brierley, 414 F.2d 552, 555 (3d Cir. 1969) (A “petition prepared by a prisoner ... may be inartfully drawn and should ... be read ‘with a measure of tolerance' ”); Freeman v. Department of Corrections, 949 F.2d 360 (10th Cir. 1991). Under our liberal pleading rules, a district court should construe all allegations in a complaint in favor of the complainant. Gibbs v, Roman, 116 F.3d 83 (3d Cir. 1997) (overruled on other grounds); see also Nami v. Fauver, 82 F.3d 63, 65 (3d Cir. 1996) (discussing Fed.R.Civ.P. 12(b)(6) standard); Markowitz v. Northeast Land Co., 906 F.2d 100, 103 (3d Cir. 1990) (same). However, there are limits to the court's procedural flexibility: “pro se litigants still must allege sufficient facts in their complaints to support a claim ... they cannot flout procedural rules - they must abide by the same rules that apply to all other litigants.” Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 245 (3d Cir. 2013) (citations omitted). Accordingly, because Plaintiff is a pro se litigant, this Court will consider the facts and make inferences where it is appropriate.
C. DISCUSSION
1. Fourth Amendment
Defendants move to dismiss Rankin's Fourth Amendment claim for failing to set forth a legally sufficient basis for relief. ECF No. 16 at 3-5. Defendants argue that under applicable precedent, “inmates do not have a Fourth Amendment right to be free of strip searches, which may be conducted by prison officials without probable cause provided that the search is conducted in a reasonable manner.” Id. (citing Bell v. Wolfish, 441 U.S. 520, 558 (1979)). Defendants assert that the search of Rankin “was conducted in a reasonable manner” and, therefore, dismissal is warranted. Id.
In Bell, the United States Supreme Court explained that to the extent any Fourth Amendment rights were retained upon incarceration, a violation would not be stated for subjecting an inmate to a visual body cavity search after a contact visit with an outside visitor. The Court balanced the privacy interests of inmates against “the significant and legitimate security interests of the institution,” including “[s]muggling of money, drugs, weapons, and other contraband ... by concealing them in body cavities,” and concluded that “visual body-cavity inspections ... [could] be conducted on less than probable cause.” Bell, 441 U.S. at 559, 560.
Nearly forty years later, the United States Court of Appeals for the Third Circuit held that the Fourth Amendment applied to inmates subjected to visual body cavity searches, albeit under narrowly defined circumstances.
the Fourth Amendment... grants inmates a limited right of bodily privacy, subject to reasonable intrusions necessitated by the prison setting.... [Thus,] a right to privacy in one's own body, unlike a right to maintain private spaces for possessions, is not fundamentally inconsistent with imprisonment and is so fundamental that society would recognize it as reasonable even in the prison context. Our conclusion “necessarily entails a balancing of interests.” Like the Court in Hudson, we recognize that “[t]he curtailment of certain rights is necessary, as a practical matter, to accommodate a myriad of institutional needs and objectives of prison facilities, chief among which is internal security,” but also that prisoners must be “accorded those rights not fundamentally inconsistent with imprisonment itself or incompatible with the objectives of incarceration.”Parkell v. Danberg, 833 F.3d 313, 325 (3d Cir. 2016) (quoting Hudson v. Palmer, 468 U.S. 517, 523, 524 (1984) (internal quotation marks and citation omitted)). Thus, the reasonableness of a search is judged weighing four factors identified in Bell: “the scope of the particular intrusion, the manner in which it is conducted, the justification for initiating it, and the place in which it is conducted.'” Bell, 441 U.S. at 559.
The summary judgment record in Parkell included evidence of the manner and scope of thrice-daily visual body cavity searches on inmates confined to a disciplinary housing unit, including the fact that the searches occurred every eight hours whether or not an inmate left his cell. The frequency of the body cavity searches in the absence of contact with others led the Third Circuit to conclude that “the search policy in its present form is an ‘exaggerated ... response to [security] considerations'” and violates the Fourth Amendment. Parked, 833 F.3d at 330.
Parkell was decided at the summary judgment stage, after discovery. The record established that:
inmates in isolation in C-Building live in stripped-down cells in which they wear only t-shirts, boxer briefs, and socks, are not permitted to keep rags, towels, or rolls of toilet paper, and are provided with soap and other hygienic items only during their thrice-weekly showers. And according to Parkell's version of events, the credibility of which we do not doubt in the context of summary judgment, he left his isolation cell only three times per week for brief showers and had no human contact while in isolation, except for daily visits from nurses for the limited purpose of dispensing medication (along with, of course, the thrice-daily visual body-cavity searches themselves). He therefore had few, if any, opportunities to obtain contraband-and certainly not three opportunities per day-which distinguishes this case from the searches in Bell that took place after visitations involving in-person contact.Parkell, 833 F.3d at 327-28.
Here, at this early stage of the litigation, the Court must accept the factual allegations of the Complaint as true and, applying the Bell factors, assess the purported justification (“you're an inmate”) against the scope and manner Rankin's visual body cavity search was conducted (in full view of other inmates). While the Court may surmise, as posited by Rankin in his Complaint, that suspicion of contraband was behind the decision to search him, that suspicion - while not required to be individualized - must be reasonable under the circumstances. The Court must also consider whether the circumstances required a body cavity search in public view. At this juncture, that assessment is not possible. Accordingly, it is recommended that the Court deny the Motion to Dismiss Rankin's Fourth Amendment claim.
2. Personal Involvement of Wetzel, Tice, and Shaffer
To prevail on a claim pursuant to 42 U.S.C. § 1983, a plaintiff must prove that a defendant, acting under color of state law, deprived the plaintiff of a right secured by the Constitution or laws of the United States. Mark v. Borough of Hatboro, 51 F.3d 1137, 1141 (3d Cir. 1995); Estate of Smith v. Marasco, 430 F.3d 140,151 (3d Cir. 2005); 42 U.S.C. § 1983. A plaintiff must also show that each named defendant was personally involved in depriving him of his rights. 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 F. App'x. 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. 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).
These principles apply equally to supervising prison officials such as Wetzel and Tice. Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1998) (noting that liability for supervisory officials must be based on “personal involvement in the alleged wrongs”); Evancho, 423 F.3d at 353 (“[L]iability cannot be predicated solely on the operation of respondeat superior.”). Thus, a supervisor may only be liable for unconstitutional acts undertaken by subordinates if the supervisor either: (1) with deliberate indifference to the consequences, established and maintained a policy, practice or custom which directly caused [the] constitutional harm; or (2) participated in violating the plaintiffs rights, directed others to violate them, or, as the person in charge, had knowledge of and acquiesced in the subordinate's unconstitutional conduct. A.M. ex rel. J.M.K. v. Luzerne Cnty. Juvenile Det. Ctr., 372 F.3d 572, 586 (3d Cir. 2004). “Allegations of participation or actual knowledge and acquiescence, however, must be made with appropriate particularity. Compare Boykins v. Ambridge Area Sch. Dist, 621 F.2d 75, 80 (3d Cir. 1980) (civil rights complaint adequate where it states time, place, persons responsible); Hall v. Pennsylvania State Police, 570 F.2d 86, 89 (3d Cir. 1978) (same).” Rode, 845 F.2d at 1207-08.
Rankin alleges that Tice and Wetzel had notice by way of unspecified grievances from “other prisoners” “or otherwise” of a practice at SCI - Somerset to harass inmates by forcing them to engage in visual body cavity searches in public areas. ECF No. 8 ¶ 17. Rankin argues that his allegations of notice are sufficient to state a plausible claim that Tice and Wetzel acquiesced to a practice of unlawful searches at SCI - Somerset. ECF No. 27 at 3-4. However, as stated in Rode, a supervisor's liability may not be based on some generalized failure to take corrective action after the referral of grievances or investigations. Rode, 845 F.2d at 1208 (allegations of personal knowledge because of filing grievances, telephone calls, or correspondence “are simply insufficient” to show actual knowledge). Moreover, as to such claims, dismissal is appropriate “because there is no apparent obligation for prison officials to investigate prison grievances.” Paluch v. Sec'y Pennsylvania Dep't. Corr., 442 Fed.Appx. 690, 695 (3d Cir. 2011).
Based on these principles, the Court concludes that Rankin has failed to allege facts sufficient to state a plausible claim for relief as Wetzel or Tice based on their alleged acquiescence to the complained of body cavity search practices at SCI - Somerset.
As to Shaffer, Rankin alleges that she conducted a pat down search when he entered the yard. Rankin does not allege that Shaffer participated in the complained of visual body cavity search and thus fails to state a plausible claim that Shaffer was personally involved in the alleged constitutional violation. Under these circumstances, dismissal of Rankin's claims against Shaffer is properly entered.
D. CONCLUSION
For the foregoing reasons, it is respectfully recommended that the Motion to Dismiss be denied as to Rankin's claims against Cinko, Boring, and Walker, but granted as to all claims asserted against Wetzel, Tice, and Shaffer. However, because it does not appear that amendment of Rankin's claims against Wetzel, Tice, and Shaffer would be futile, it is recommended that the Court grant Plaintiff thirty days to correct the deficiencies identified in this Report and Recommendation. Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002) (“When a plaintiff does not seek leave to amend a deficient complaint after a defendant moves to dismiss it, the court must inform the plaintiff that he has leave to amend within a set period of time, unless amendment would be inequitable or futile.”).
In accordance with the Magistrate Judges Act, 28 U.S.C. § 636(b)(1), and Local Rule 72.D.2, the parties are permitted to file written objections in accordance with the schedule established in the docket entry reflecting the filing of this Report and Recommendation. Objections are to be submitted to the Clerk of Court, United States District Court, 700 Grant Street, Room 3110, Pittsburgh, PA 15219. Failure to timely file objections will waive the right to appeal. Brightwell v. Lehman, 637 F.3d 187, 193 n. 7 (3d Cir. 2011). Any party opposing objections may file their response to the objections within fourteen (14) days thereafter in accordance with Local Civil Rule 72.D.2.
All counsel of record by Notice of Electronic Filing