Opinion
3:21-cv-46-SLH-KAP
03-24-2021
EARNEST SCOTT, Jr., Plaintiff v. DEPUTY CLOSE, et al., Defendants
REPORT AND RECOMMENDATION
Keith A. Pesto, United States Magistrate Judge
Recommendation
The complaint, except for one claim discussed below, should be dismissed for failure to state a claim without leave to amend.
Report
Plaintiff, an inmate at S.C.I. Houtzdale, filed a complaint, see ECF no. 1, naming as defendants either five, six, or seven members of the staff at the prison. Since plaintiff is proceeding in forma pauperis, the Prison Litigation Reform Act as codified at 28 U.S.C.§ 1915(e)(2), commands:
(2) Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that--
(A) the allegation of poverty is untrue; or
(B) the action or appeal--
(i) is frivolous or malicious;
(ii) fails to state a claim on which relief may be granted; or
(iii) seeks monetary relief against a defendant who is immune from such relief.
Also applicable to this case is the PLRA as codified at 28 U.S.C.§ 1915A, which commands:
(a) Screening.--The court shall review, before docketing, if feasible or, in any event, as soon as practicable after docketing, a complaint in a civil action in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity.
(b) Grounds for dismissal.--On review, the court shall identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint-
(1) is frivolous, malicious, or fails to state a claim upon which relief may be granted; or
(2) seeks monetary relief from a defendant who is immune from such relief.
Screening the complaint as commanded by the PLRA, plaintiff alleges in Section IV of the pre-printed form complaint that on December 9, 2020, a Sergeant Jones “stole all of my property, ” which he then lists. He then in conclusory fashion alleges that Lieutenant Buterbaugh denied and delayed medical treatment, and “denied me basic human necessities.” Captain Jones and Deputy Superintendent Close also allegedly denied him basic human necessities. Nurse Michael Radaker denied and delayed medical treatment. Unit Manager Kelly “failed to train and supervise” Radaker.
In the accompanying typed complaint, a corrections officer named Gondek is mentioned in the caption and in a prayer for relief. Unit Manager Kelly is not mentioned at all. Sergeant Jones is mentioned, but only to introduce the events of the evening of December 9, 2020. Plaintiff alleges that on at about 7:00p.m. or 8:00p.m. on December 9, 2020, he was in his cell protesting a threatened write-up from Sergeant Jones, and as a result he was removed from his cell with use of gas. After being decontaminated, he was placed in an observation cell without clothing other than a jumpsuit, and without bedding. He told Nurse Radaker that he was diabetic, a fact known to Radaker, and that he felt his blood sugar was low and he needed something to eat. Radaker assured plaintiff he would get something to eat and Lieutenant Buterbaugh assured plaintiff he would get clothing and toiletries, but this did not happen. The deprivation of bedding, clothing, and toiletries lasted for seven days. The constant illumination and the noise in his cell made it difficult for plaintiff to sleep. He suffered emotional distress as a result.
The night that plaintiff was placed in the observation cell he alleges that two different corrections officers on successive shifts made continuous racist taunts about his risk of diabetic shock (“go into a coma you dumb nigger”). In the prayer for relief, plaintiff refers to corrections officer Gondek, so it may be that plaintiff believes this was one of the corrections officers who allegedly for hours continuously made racist taunts over the unit intercom. It is worth noting that plaintiff alleged in a previous lawsuit that he has and acts out on auditory hallucinations. See Scott v. Philadelphia Department of Prisons, 2019 WL 1490122, at *1 (E.D.Pa. Apr. 3, 2019). The taunting caused plaintiff emotional distress.
On the morning after being placed in the observation cell, that is December 10, 2020, plaintiff had his blood sugar tested and it was “33, ” which I assume refers to a measurement in mg/dL. Plaintiff alleges that anything below 40 risks diabetic coma and that he “could have died.” Neither death nor coma is alleged, and plaintiff's own allegations are that medical personnel were monitoring his blood sugar, but plaintiff alleges that the failure by Radaker to ensure that his blood sugar did not drop below 40 the morning of December 10, 2020 was deliberate indifference and caused plaintiff to suffer a worsening of the diabetic neuropathy he already suffered in his legs, plus emotional distress.
Plaintiff seeks compensatory and punitive damages from each of the defendants for the conditions in the observation cell, for what he alleges was a denial of medical care the night of December 9-10, 2020, and for what he alleges was verbal abuse the night of December 9-10, 2020.
With one exception, the complaint should be dismissed for failure to state a claim without further proceedings because the claims asserted are meritless, and no plausible amendment is likely to state a claim in light of what plaintiff does plead.
Theft of property
Assuming that the plaintiff intended to assert a claim against Sergeant Jones for theft of his property, the Court of Appeals has observed that theft, that is, an “unauthorized intentional deprivation of property” by prison officials, does not violate the Due Process Clause “if a meaningful postdeprivation remedy for the loss is available.” Monroe v. Beard, 536 F.3d 198, 210 (3d Cir. 2008), quoting Hudson v. Palmer, 468 U.S. 517, 533 (1984). Monroe v. Beard and subsequent cases have also observed that DC-ADM 804 is a meaningful postdeprivation remedy. Any claims plaintiff may have intended against Sergeant Jones should be dismissed without prejudice to proceeding with a tort claim in state court, see 42 Pa.C.S.§ 8522(b)(3), or administratively under DC-ADM 804.
Use of the observation cell
In Wilson v. Seiter, 501 U.S. 294, 304 (1991), the Supreme Court observed that “[s]ome conditions of confinement may establish an Eighth Amendment violation ‘in combination' when each would not do so alone, but only when they have a mutually enforcing effect that produces the deprivation of a single, identifiable human need such as food, warmth, or exercise.” An observation cell - the use of which is not alleged to have been unjustified - by its nature restricts an inmate's access to the amenities that may be available in other prison accommodations. Separating an inmate from bedding and other objects he can use to harm himself and the use of illumination to keep an inmate visible, though uncomfortable, are neither intended as punishments nor can be construed as unconstitutional conditions when, as here, they were limited in duration and are not alleged to have deprived plaintiff of any basic human needs or to have caused any injury other than emotional distress. Further, “emotional distress, ” like “pain, ” “fear, ” “mental anguish, ” and other similar terms used by plaintiff, is itself a conclusory term that in the absence of explanation might mean nothing more than the plaintiff's desires were not satisfied. That is not a legally cognizable injury.
Additionally, even if plaintiff could amend the complaint to allege facts showing that the use of the observation cell was unjustified and deprived him of a basic human need, it is still the case that no “[f]ederal civil action can be brought” for mental or emotional injury without a prior showing of physical injury. 42 U.S.C.§ 1997e(e). Section 1997e(e)'s explicit requirement that the physical injury be “prior” to any action for emotional injury and the PLRA's purpose of discouraging frivolous suits preclude reliance on emotional distress or the somatic manifestations of emotional distress as compensable injuries. See Davis v. District of Columbia, 158 F.3d 1342, 1349 (D.C.Cir.1998), citing Terrafranca v. Virgin Atl. Airways Ltd., 151 F.3d 108, 111 (3d Cir.1998). See also Dean v. Phillips, 2008 WL 5056679, at *7 n.20 (N.D.N.Y. Nov. 24, 2008) (collecting cases -including Davis- holding that physical manifestations of emotional injuries are not physical injuries).
Because plaintiff has not alleged any physical injury in connection with being placed in an observation cell, he does not satisfy the requirements of Section 1997e(e) and cannot recover compensatory damages for this claim.
As for punitive damages, circuit precedent holds that Section 1997e(e) of itself does not prohibit a plaintiff without physical injuries from seeking punitive damages, see Mitchell v. Horn, 318 F.3d 523, 533 (3d Cir. 2003), but any adequate claim for punitive damages at the least requires allegations that a defendants' conduct was “outrageous, ” or taken “with evil motive, ” or that a defendant acted with “malice, vindictiveness and a wholly wanton disregard of the rights of others” or “a quantum of outrageous conduct in addition to that undergirding the ... liability.” See In re Lemington Home for the Aged, 777 F.3d 620, 634 (3d. Cir.2015) (collecting cases). There must be, at the pleading stage, an allegation of reprehensible conduct. See BMW of North America, Inc. v. Gore, 517 U.S. 559, 575 (1996) (“Perhaps the most important indicium of the reasonableness of a punitive damages award is the degree of reprehensibility of the defendant's conduct.”) The only conduct that could be described as reprehensible is the racist taunting that plaintiff alleges. The use of the observation cell cannot be described as reprehensible.
Furthermore, the Prison Litigation Reform Act, as codified at 18 U.S.C.§ 3626(a)(1)(A), itself prohibits the award in prison conditions cases of any “prospective relief” which is not “necessary to correct the violation of the Federal right of a particular plaintiff or plaintiffs.” The PLRA's definition of prospective relief is contained in 18 U.S.C.§ 3626(g)(7): “all relief other than compensatory money damages.” If “all” means “all, ” then punitive damages are, like nominal damages and declaratory judgment, ruled out because they are not compensatory damages and they do not correct a violation of a plaintiff's rights.
Additionally, even if the PLRA did not apply, amendment to seek other remedies is not available to plaintiff. Declaratory relief is inappropriate because declaratory relief “must be more than a retrospective opinion that the plaintiff was wrongly harmed by the defendant.” Jordan v. Sosa, 654 F.3d 1012, 1025 (10th Cir.2011), quoted with approval in Mollett v. Leicth, 511 Fed.Appx. 172, 174 (3d Cir. 2013). See also Burkey v. Marberry, 556 F.3d 142, 149 (3d Cir.2009)(once custody ended, possible use of a judgment in an otherwise moot habeas corpus case to persuade a sentencing judge to reduce a supervised release was so speculative as to amount to an advisory opinion.)
As for amendment to seek nominal damages, the question whether a claim for nominal damages for a past injury is enough to constitute an Article III case or controversy is still an open one. See the concurring opinion in Freedom from Religion Found. Inc v. New Kensington Arnold School District, 832 F.3d 469, 484-88 (3d Cir. 2016). But it is clear that a litigant cannot make a claim for nominal damages as a proxy for the psychic satisfaction of being in court and to litigate to recover the costs of suit. When no compensable injury is alleged that would allow a federal court to award some tangible benefit to plaintiff, a complaint is simply “an ingenious academic exercise in the conceivable” that must be dismissed. Warth v. Seldin, 422 U.S. 490, 509 (1975) quoting United States v. Students Challenging Regulatory Agency Procedures (SCRAP), 412 U.S. 669, 688 (1973).
Racist taunts
It is well settled that verbal harassment of a prisoner, although deplorable, does not violate the Eighth Amendment. Robinson v. Taylor, 204 Fed.Appx. 155, 156 (3d Cir. 2006)(collecting cases). Since there is no claim there is no need to repeat the discussion of issues relating to damages.
Medical care
Prison medical personnel violate the Eighth Amendment by “acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs.” Estelle v. Gamble, 429 U.S. 97, 106 (1976). Deliberate indifference includes (1) denial of reasonable requests for medical treatment, (2) knowing the need for medical care and intentionally refusing to provide it, (3) delaying necessary medical treatment for nonmedical reasons, and (4) preventing an inmate from receiving recommended treatment for serious medical needs. See Pearson v. Prison Health Service, 850 F.3d 526, 538 (3d Cir. 2017). Absent actual knowledge or a reason to believe that prison medical personnel are mistreating a prisoner, a non-medical prison official will not be chargeable with the Eighth Amendment scienter requirement of deliberate indifference. Spruill v. Gillis, 372 F.3d 218, 236 (3d Cir. 2004). There is nothing in plaintiff's statement of facts that would indicate that any other person could have known that Radaker was mistreating plaintiff.
As for Radaker himself, the only relevant allegations that plaintiff makes are that Radaker knew plaintiff was diabetic, plaintiff said he felt his blood sugar was low, and plaintiff wanted something to eat. Diabetes is a serious medical condition, but not every demand that a diabetic makes alleges a serious medical need. Plaintiff's assertion that Radaker was indifferent to the risk that plaintiff “might have” suffered diabetic coma or death, when in historical fact plaintiff did not suffer either, does not allege a serious medical need.
Nor is the subjective element of deliberate indifference plausibly alleged. Plaintiff, who does not allege he missed dinner, encountered Radaker during or after the process of decontaminating plaintiff from the use of gas in the evening of December 9, 2020. During that encounter plaintiff describes no signs or symptoms of distress or potential distress that would have alerted Radaker to a need for medical care. The denial of a request by an inmate, or even in this case an alleged failure to follow through on a promise to provide plaintiff with what he requested, is not deliberate indifference.
This complaint must be dismissed. Except as to the claim against Radaker, which might be fleshed out with additional factual allegations, the dismissal should be without leave to amend. The Court of Appeals, in Grayson v. Mayview State Hospital, 293 F.3d 103 (3d Cir.2002) and other cases, directs district courts to allow plaintiffs in civil rights cases leave to amend unless that amendment is "futile" or "inequitable." I find that it would be futile to allow plaintiff to amend his complaint, except for the claim against Radaker.
Pursuant to 28 U.S.C.§ 636(b)(1), the plaintiff is given notice that he has fourteen days to file written objections to this Report and Recommendation. 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). Plaintiff may also amend his complaint as to Radaker only, or he can both amend his complaint as to Radaker and file objections.