Opinion
Case No. 3:18-cv-91-KRG-KAP
02-13-2020
CURTIS A. YOUNG, Plaintiff, v. CORRECTIONS OFFICER ADAM ROWLES et al., Defendants
Order, Report and Recommendation
Order and Recommendation
Plaintiff Curtis A. Young, an inmate at S.C.I. Phoenix, filed an amended complaint in this civil rights case at ECF no. 11. After screening the amended complaint under 28 U.S.C.§ 1915A, I order it served in part and recommend that it be dismissed in part, see 28 U.S.C.§ 1915(e)(2)(B).
Plaintiff's amended complaint is ordered to be served on defendants C/O Adam Rowles, C/O Galley and Bregman. When plaintiff provides the Clerk with directions for service, requests for waiver of summons, and copies of the amended complaint, the Clerk shall forward them to the United States Marshal. Defendants are requested in accordance with Fed.R.Civ.P. 4(d) to waive service by summons. Costs of service are to be advanced by the United States.
Report
In cases in which the plaintiff is proceeding in forma pauperis, 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.
On or about April 25, 2018, plaintiff Young filed a civil complaint in the United States District Court for the Eastern District of Pennsylvania naming as the three defendants the warden at S.C.I. Houtzdale, Smith, and two corrections officers, Rowles and Galley. The Eastern District of Pennsylvania transferred the matter here. Following review of the initial complaint, I issued a Report and Recommendation recommending that the complaint should be dismissed against all defendants except for Rowles on the basis that only the allegations against Rowles were sufficient to assert a claim that could be responded to. Plaintiff subsequently signed the instant amended complaint, which like several others was drafted by Alfonso Pew, also formerly an inmate at Houtzdale.
As he did in the original complaint, plaintiff alleges in the amended complaint that on January 16, 2018, defendant Rowles pushed plaintiff, causing him to fall and resulting in an injury to plaintiff. Prior to this alleged assault, Rowles had made threatening comments to plaintiff that implied that plaintiff would have to have sexual contact with Rowles.
In the amended complaint, plaintiff adds allegations of another incident, this one occurring on December 10, 2017, when defendant Gailey threatened plaintiff with bodily harm and then Gailey summoned a group of officers, including defendant Bregman, and then "got" Bregman to spray plaintiff with "lethal [sic] amounts" of chemical spray at close range directly into plaintiff's eyes and nose, soaking plaintiff's face and body.
Finally, the amended complaint lists defendants Unknown John Doe/Jane Doe Central Office Hotline Abuse Operator, Sgt. Pancoast, Lt. Moor, Capt. Acey and Barry Smith, and baldly asserts that they were at all times directly involved in being aware of the abuse of plaintiff by Rowles, Gailey and Bregman, but ignored it. Plaintiff's allegations against this latter group of defendants do not permit the plausible conclusion that these defendants were personally involved in his injuries. See Evancho v. Fisher, 423 F.3d 347, 353 (3d Cir.2005). Further, it is well-established that Section 198 3 does not provide for respondeat superior liability. See Monell v. New York City Dep't of Social Services, 436 U.S. 658, 690-91 (1978) (municipalities are liable for injuries caused by their own illegal customs and policies but are not vicariously liable for their employees' actions).
To state a federal civil rights claim against a supervisor or employer, a plaintiff must allege that the actions or inactions that harmed him were taken as a result of a custom or policy of the employer or supervisor: See Connick v. Thompson, 563 U.S. 51 (2011) (A policy is an official proclamation or edict, while a custom is a practice that is so persistent and widespread as to practically have the force of law.) That must be done by plausible allegations of fact, not by mere assumptions or by conclusory assertions. Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009). Plaintiff fails to offer more than conclusory assertions.
The amended complaint should be dismissed for failure to state a claim as to all defendants except Rowles, Gailey and Bregman. After repeated tries it would be inequitable to permit further amendment.
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. DATE: February 13, 2020
/s/_________
Keith A. Pesto,
United States Magistrate Judge Notice by U.S. Mail to:
Curtis A. Young NF-6440
S.C.I. Phoenix
1200 Mokychic Drive
Collegeville, PA 19426