Opinion
Civil Action 21-208
05-14-2021
KEITH ROSARIO, Plaintiff, v. WESTMORELAND COUNTY, PA; WESTMORELAND COUNTY COMMISSIONER; WESTMORELAND COUNTY PRISON; WARDEN WALTON; DEPUTY WARDEN LOWTHER; DEPUTY WARDEN SCHWARZ; LIEUTENANT TOMASELLO; LIEUTENANT WOLFF; SERGEANT GILLETTE; SERGEANT BRADLEY; JOHN DOE 1-6. Defendants.
Robert J. Colville, District Judge
REPORT AND RECOMMENDATION
RE: ECF NO. 4
MAUREEN P. KELLY, UNITED STATES MAGISTRATE JUDGE
I. RECOMMENDATION
For the reasons that follow, it is respectfully recommended that the Complaint, ECF No. 4, be dismissed sua sponte pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim on which relief may be granted. It is further recommended that Plaintiff's claims against Defendant Westmoreland County Prison be dismissed with prejudice, as they are duplicative of his claims against Westmoreland County, PA. All other claims should be dismissed without prejudice to the filing of an amended complaint.
II. REPORT
A. Factual and Procedural Background
Plaintiff is an inmate currently incarcerated at the State Correctional Institution at Albion (“SCI-Albion”). ECF No. 1 at 2. He initiated the instant action by filing the Complaint and motion for leave to proceed in forma pauperis (“IFP”) which were received on February 8, 2021. ECF Nos. 1 and 4. In forma pauperis status was granted on April 9, 2021. ECF No. 3.
In the Complaint, Plaintiff alleges violations of his rights under the Fourth, Eighth, and Fourteenth Amendments, and seeks redress under the Civil Rights Act of 1871, 42 U.S.C. § 1983. ECF No. 4 at 1.
Specifically, Plaintiff alleges that he was assaulted, without justification, in a segregated cell by “prison staff” while he was in the custody of Westmoreland County Prison. Id. at 2. Plaintiff names a host of Defendants - including multiple Doe defendants - but does not allege that any of them was involved in the assault. Plaintiff alleges that that such acts “are commonplace” at Westmoreland County Prison, and that the Warden and County Commissioner “know about the use of excessive force by prison guards or should have known about certain incidents involving inmates being assaulted by prison guards.” Id. at 4.
Plaintiff asserts that “more facts are to be developed in amended complaint.” Id. at 2. As of the date of this writing, no amended complaint has been submitted.
B. Legal Standard
28 U.S.C. § 1915 establishes the criteria for allowing an action to proceed IFP. Section 1915(e) requires the federal courts to review complaints filed by persons that are proceeding in forma pauperis and to dismiss, at any time, any action that is frivolous or malicious, fails to state a claim on which relief may be granted, or seeks monetary relief against a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B). Thus, a court must dismiss, sua sponte, a complaint that lacks arguable merit in fact or law. Stackhouse v. Crocker, 266 Fed.Appx. 189, 190 (3d Cir. 2008) (citing Neitzke v. Williams, 490 U.S. 319, 325 (1989)).
The standard for reviewing a complaint under Section 1915(e)(2)(B) is the same as that for determining a motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. See Tourscher v. McCullough, 184 F.3d 236, 240 (3d Cir. 1999); see also Banks v. Mozingo, No. 08-004, 2009 WL 497572, at *6 (W.D. Pa. Feb. 26, 2009). Under that Rule, dismissal is appropriate if, reading the complaint in the light most favorable to the plaintiff, and accepting all factual allegations as true, no relief could be granted under any “reasonable reading of the complaint” Phillips v. Cnty. of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008). A complaint must be dismissed even if the claim to relief is “conceivable, ” because a plaintiff must allege “enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim has facial plausibility when the plaintiff pleads factual content that allows 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).
The United States Court of Appeals for the Third Circuit has held that, when determining whether to dismiss a complaint for failing to state a claim upon which relief can be granted, a district court should apply a two-part test in order to determine whether a pleading's recitation of facts is sufficient. Fowler v. UPMC Shadyside, 578 F.3d 203 (3d Cir. 2009). “First, the factual and legal elements of a claim should be separated. The District Court must accept all of the complaint's well-pleaded facts as true, but may disregard any legal conclusions.” Id. at 210-11 (citing Iqbal, 129 S.Ct. at 1949). “Second, a District Court must then determine whether the facts alleged in the complaint are sufficient to show that the plaintiff has a “‘plausible claim for relief.'” Fowler, 578 F.3d at 211 (quoting Iqbal, 556 U.S. at 679).
A court must employ less stringent standards when considering pro se pleadings than when judging the work product of an attorney. Haines v. Kerner, 404 U.S. 519, 520 (1972). In a Section 1983 action, a court must liberally construe a pro se litigant's pleadings and “‘apply the applicable law, irrespective of whether a pro se litigant has mentioned it by name.'” Higgins v. Beyer, 293 F.3d 683, 688 (3d Cir. 2002) (quoting Holley v. Dep't of Veteran Affairs, 165 F.3d 244, 247-48 (3d Cir. 1999)). “‘Since this is a § 1983 action, the [pro se] plaintiffs are entitled to relief if their complaint sufficiently alleges deprivation of any right secured by the Constitution.'” Higgins, 293 F.3d at 688 (quoting Nami v. Fauver, 82 F.3d 63, 65 (3d Cir. 1996)). That said, it is not proper for a court to assume that “the [plaintiff] can prove facts which [he or she] has not alleged, or that the defendants have violated the . . . laws in ways that have not been alleged.” Assoc.'d Gen. Contractors of California, Inc. v. California State Council of Carpenters, 459 U.S. 519, 526 (1983). A court further need not accept inferences drawn by a plaintiff if they are unsupported by the facts as set forth in the complaint. See California Pub. Emp.s' Ret. Sys. v. Chubb Corp., 394 F.3d 126, 143 (3d Cir. 2004).
Finally, the United States Court of Appeals for the Third Circuit has held that, in civil rights cases, a court must give a plaintiff the opportunity to amend a deficient complaint - regardless of whether the plaintiff requests to do so - when dismissing a case for failure to state a claim, unless doing so would be inequitable or futile. See Fletcher-Harlee Corp. v. Pote Concrete Contractors, Inc., 482 F.3d 247, 251 (3d Cir. 2007).
C. Legal Analysis
In order to plead a viable claim under 42 U.S.C. § 1983, a plaintiff must meet two threshold requirements. First, the alleged misconduct giving rise to the cause of action must have been committed by a person acting under color of state law; and second, the defendants' conduct must have deprived the plaintiff of rights, privileges, or immunities secured by the Constitution or laws of the United States. Parratt v. Taylor, 451 U.S. 527, 535 (1981), (overruled in part on other grounds, Daniels v. Williams, 474 U.S. 327, 330-331 (1986)).
1. Plaintiff has failed to plead personal involvement or supervisory liability of any individual Defendant.
In order for Section 1983 liability to attach, a plaintiff must show that a defendant was personally involved in the deprivation of his or her federal rights. Evancho v. Fisher, 423 F.3d 347, 353 (3d Cir. 2005). Here, Plaintiff has not alleged personal involvement from any named Defendant, and thus fails to state a claim.
To the extent that he attempts to do so, Plaintiff further fails to state a claim with respect to supervisory liability as well. In cases involving a supervisory or reviewing defendant, personal involvement may be shown through “‘allegations of personal direction or of actual knowledge and acquiescence.'” Id. (quoting Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988)). In situations where a supervising official knowingly permits a continuing custom or policy that results in harm to a plaintiff, Section 1983 liability may attach. See Colburn v. Upper Darby Twp., 838 F.2d 663, 673 (3d Cir. 1988) (overruled in part on other grounds by Leatherman v. Tarrant Cnty. Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 168 (1993)). At a minimum, liability in such a case is appropriate “‘only where there are both (1) contemporaneous knowledge of the offending incident or knowledge of a prior pattern of similar incidents, and (2) circumstances under which the supervisor's inaction could be found to have communicated a message of approval to the offending subordinate.'” Colburn, 838 F.2d at 673 (quoting Chinchello v. Fenton, 805 F.2d 126, 133 (3d Cir. 1986)).
Here, Plaintiff has failed to allege that any specific Defendant had contemporaneous knowledge of the alleged assault. To the extent that Plaintiff would base a claim of supervisory liability on an alleged pattern of assaults, the same fails because Plaintiff has not adequately pleaded an underlying constitutional violation at the hands of subordinates. See Allen v. Eckard, 804 Fed.Appx. 123, 127 (3d Cir. 2020) (“all of [supervisory liability claims under Section 1983]
require a showing that there was an actual constitutional violation at the hands of subordinates.”). See also Santiago v. Warminster Twp., 629 F.3d 121, 130 (3d Cir. 2010); Sample v. Diecks, 885 F.2d 1099, 1118 (3d Cir. 1989).
Furthermore, Plaintiff's only allegations with respect to a potential supervisory liability claim are conclusory, and without detail. ECF No. 4 ¶¶ 13, 15 (raising threadbare allegations of the occurrence of “similar incidents” without any detail, and that Defendants “knew about the use of excessive force by prison guards or should have known about certain incidents involving inmates being assaulted by prison guards.”). Without more detail, Plaintiff's supervisory liability claim has not risen from the level of “conceivable” to “plausible, ” and thus does not support a claim. Twombly, 550 U.S. at 570 Accordingly, Plaintiff has failed to state a claim against any individual Defendant, and as such, those Defendants should be dismissed. However, as amendment would not necessarily be futile, dismissal should be without prejudice to filing an amended complaint plausibly pleading personal involvement in the acts underlying Plaintiff's constitutional claims.
2. Plaintiff's claims against Defendant Westmoreland County Prison should be dismissed with prejudice.
Plaintiff's claims against Defendant Westmoreland County Prison are duplicative of those asserted against Defendant Westmoreland County, as the prison merely is an entity of county. Colburn, 838 F.2d at 671 n.7; see also Phillips v. Rustin, 2009 WL 1688466, at *1 n.3 (W.D. Pa. June 17, 2009). Accordingly, Plaintiff's claims against Defendant Westmoreland County Prison should be dismissed. As any attempt at amendment would be futile, dismissal should be with prejudice. See Fletcher-Harlee Corp., 482 F.3d at 251.
3. Plaintiff has failed to plead a claim for municipal liability against Defendant Westmoreland County, PA.
A “local government may not be sued under § 1983 for an injury inflicted solely by its employees or agents.” Monell v. Dep't of Soc. Serv., 436 U.S. 658, 694 (1978). Instead, in order to state a claim of municipal liability under Section 1983, a plaintiff must allege that he or she was subject to a constitutional violation as the result of some identifiable official custom or policy of a municipality. Faylor v. Szupper, 411 Fed.Appx. 525, 530-31 (3d Cir. 2011) (citing Montgomery v. De Simone, 159 F.3d 120, 126 (3d Cir. 1998)). Additionally, a plaintiff must establish that the municipality was the moving force behind his alleged injury. Bd of Cnty. Comm'rs of Bryan Cnty., Okl. v. Brown, 520 U.S 397, 405 (1997). This means that the “plaintiff must show that the municipal action was taken with the requisite degree of culpability and must demonstrate a direct causal link between the municipal action and the deprivation of federal rights.” Id. (citations omitted). See also Berg v. Cnty. of Allegheny, 219 F.3d 261, 276 (3d Cir. 2000) (to establish municipal liability based upon a custom or practice, the plaintiff must demonstrate that the decision-maker had notice that a constitutional violation could occur and that the decision-maker acted with deliberate indifference to this risk.).
A custom or practice can be found with no official declaration, and can be demonstrated in one of two ways. First, custom “can be proven by showing that a given course of conduct, although not specifically endorsed or authorized by law, is so well-settled and permanent as virtually to constitute law.” Bielevicz v. Dubinon, 915 F.2d 845, 850 (3d Cir. 1990); accord Beck v. Pittsburgh, 89 F.3d 966, 971. Secondly, “[c]ustom . . . may also be established by evidence of knowledge and acquiescence” by the final policymakers in the area. Beck, 89 F.3d at 971 (citing Fletcher v. O'Donnell, 867 F.2d 791, 793 (3d Cir. 1989)). However, a plaintiff need not identify knowledge and acquiescence of a practice so “permanent and well settled” as to have “the force of law, ” Monell, 436 U.S. at 691, since such customs are “ascribable to municipal decisionmakers.” Bielevicz, 915 F.2d at 850 (internal quotations omitted) (quoting Anela v. City of Wildwood, 790 F.2d 1063, 1067 (3d Cir. 1986)); see also id. at 853 (“Such well-established custom exists only with the approval or, at the very least, with the sufferance of policymakers”).
That said. a plaintiff cannot prove a custom simply by citing one instance of the custom asserted, performed by a lower-level employee. Groman v. Twp. of Manalapan, 47 F.3d 628, 637 (3d Cir. 1995); Fletcher, 867 F.2d at 793. However, a showing that a well-established practice exists, and that the municipality has done nothing to end or change the practice, supports a finding of a custom attributable to the municipality. See Bielevicz, 915 F.2d at 852-53 (finding no basis for a directed verdict in favor of a municipality upon such a showing at trial).
In his Complaint, Plaintiff makes conclusory allegations of the allowance of the use of excessive force by prison staff, and that Defendants Warden and County Commissioner “knew about [similar] use[s] of excessive force by prison guards or should have known about certain incidents involving inmates being assaulted by prison guards.” ECF No. 4 ¶¶ 13 and 15. But as with Plaintiff's apparent claim of supervisory liability, these threadbare assertions are not supported by underlying factual allegations to render his claims plausible. Twombly, 550 U.S. at 570. Cf. Sample, 885 F.2d at 1118 (“the standard of individual liability for supervisory public officials will be found to be no less stringent than the standard of liability for the public entities that they serve.”).
Accordingly, Plaintiff's municipal liability claims should be dismissed. As it is unclear whether leave to amend would be futile, dismissal of these claims should be without prejudice to filing an amended complaint including specific allegations of fact regarding the alleged policy or custom underlying his constitutional claims against Defendant Westmoreland County PA.
III. CONCLUSION
Based on the reasons set forth herein, it is respectfully recommended that the Complaint, ECF No. 4, be dismissed sua sponte pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim on which relief may be granted. It is further recommended that Plaintiff's claims against Defendant Westmoreland County Prison be dismissed with prejudice, as they are duplicative of his claims against Westmoreland County, PA. All other claims should be dismissed without prejudice to Plaintiff filing an amended complaint addressing the identified pleading deficiencies.
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 days thereafter in accordance with Local Civil Rule 72.D.2.