The opinion of the court was delivered by: CHRISTOPHER CONNER, District Judge
Presently before the court is a motion to dismiss (Doc. 29)
plaintiff's 42 U.S.C. § 1983 claims (Doc. 21) filed on behalf of
defendants Modery and Rush.*fn1 For the following reasons,
the motion will be granted.
On November 10, 2004, plaintiff Hilton Mincy ("Mincy"), an
inmate incarcerated at the State Correctional Institution at
Mahanoy, witnessed an altercation between his cell mate and a
correctional officer. On November 12, 2004, Mincy was ordered to
report to the prison security office to discuss the incident.
Mincy stated that the correctional officer verbally provoked his
cell mate and that the officer had "taken the first swing."
According to Mincy, prison authorities believe that he
conspired with his cell mate to assault the correctional officer.
As a result, Mincy claims that he was subject to increased
scrutiny in the form of frequent cell visits and pat searches. Mincy further alleges that on November 23, 2004, he was moved to
D-block which is known throughout the prison as the block that
houses sex offenders and rapists. According to Mincy, he was
placed in the "trouble watch cell" directly across from the
On November 27, 2004, Mincy was transferred to the Restrictive
Housing Unit ("RHU") and placed in administrative custody pending
an investigation of threats against an officer. Mincy alleges
that RHU officers refused to provide him with basic personal
hygiene items and stationery. Consequently, Mincy elected to
pursue a hunger strike commencing November 28, 2004.
While in the RHU, Mincy signed up for sick call and was seen by
defendant Rush, a physician's assistant. Mincy informed Rush of
his hunger strike, advised him of the reasons for the hunger
strike, and assured Rush that he was not suicidal. On December 1,
2004, Mincy was examined by defendant Modery, a physician. Mincy
reiterated that he was not suicidal and complained of the
conditions in the RHU and the poor manner in which he was being
treated by the RHU officers. When Modery asked Mincy if he
intended to eat that afternoon, Mincy responded that he would not
eat unless he was provided his "basic RHU issue",*fn2 and he
was allowed to contact his attorney. Modery told him that he
would have to pursue these issues with RHU officers because she
had nothing to do with such matters. He replied that the RHU
officers that were not cooperating with him. Mincy was then transferred to the psychiatric wing of the medical
department and placed in what he describes as a cold "strip cell"
with no running water or toilet paper. He complained of the cell
conditions and continually stated that he was not suicidal. He
was released back to the RHU the following day.*fn3 Mincy's
attempts to resolve the issues upon return to the RHU were
unsuccessful. He later filed grievances concerning the RHU
Although the exact nature of the claims against Modery and Rush
are not specified in the complaint, Mincy clarifies, in his
opposition brief, that he seeks to hold these defendants liable
because they were deliberately indifferent to the RHU conditions
in violation of the Eighth Amendment. In effect, Mincy claims
that despite their awareness of his hunger strike related to the
conditions in the RHU, Modery and Rush did nothing to rescue him
from his plight. Mincy also alleges that these defendants "acted
in concert" with the other defendants, in retaliating against him
for exercising his First Amendment rights.
Federal Rule of Civil Procedure 12(b)(6) provides for dismissal
of a claim that fails to assert a basis upon which relief can be
granted. FED. R. CIV. P. 12(b)(6). In the context of a motion to
dismiss under Rule 12(b)(6), the court must accept as true all of
the factual allegations in the complaint and all reasonable
inferences that can be drawn therefrom. Langford v. City of Atlantic City,
235 F.3d 845, 847 (3d Cir. 2000) (citing Nami v. Fauver, 82 F.3d 63, 65
(3d Cir. 1996)). Although the court is generally limited in its
review to the facts alleged in the complaint, it "may also
consider matters of public record, orders, exhibits attached to
the complaint and items appearing in the record of the case."
Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1384
n. 2 (3d Cir. 1994); see also In re Burlington Coat Factory Sec.
Litig., 114 F.3d 1410, 1426 (3d Cir. 1997) (stating that,
although "a district court ruling on a motion to dismiss may not
[generally] consider matters extraneous to the pleadings[,] . . .
a document integral to or explicitly relied upon in the
complaint" may be considered "without converting the motion [to
dismiss] into one for summary judgment") (quoting Shaw v.
Digital Equip. Corp., 82 F.3d 1194, 1224 (1st Cir. 1996)).
The court will not dismiss a complaint for failure to state a
claim unless it appears beyond a doubt that "no relief could be
granted under any set of facts that could be proved consistent
with the allegations." Swierkiewicz v. Sorema N.A.,
534 U.S. 506, 514 (2002). "The complaint will be deemed to have alleged
sufficient facts if it adequately put[s] the defendant on notice
of the essential elements of the plaintiff's cause of action."
Langford, 235 F.3d at 847. The court must grant leave to amend
before dismissing a complaint that is merely deficient. See
Shane v. Fauver, 213 F.3d 113, 116-17 (3d Cir. 2000). II. Discussion
To state a viable claim under 42 U.S.C. § 1983, the plaintiff
must allege that the defendant, while acting under color of state
law, deprived the plaintiff of a right, privilege or immunity
secured by the Constitution of the United States. See
42 U.S.C. § 1983; see also, West v. Atkins, 487 U.S. 42, 48 (1988). "A
defendant in a civil rights action must have personal involvement
in the alleged wrongs. . . . Personal involvement may be shown
through allegations of personal direction or actual knowledge and
acquiescence." Rode v. Dellarciprete, 845 F.2d 1195, 1207-08
(3d Cir. 1988). Each defendant must have been personally involved
in the events or occurrences which underlie a claim. See
Atkinson v. Taylor, 316 F.3d 257 (3d Cir. 2003); Rizzo v.
Goode, 423 U.S. 362 (1976); Hampton v. Holmesburg Prison
Officials, 546 F.2d 1077 (3d Cir. 1976). Allegations of
participation or actual knowledge and acquiescence, however, must
be made with appropriate particularity. Rode,
845 F.2d at 1207-08.
Mincy's act of registering his personal conditions complaints
to Modery and Rush is insufficient to establish their personal
involvement in the unsatisfactory RHU conditions to which Mincy
was subjected. Plaintiff does not allege that prison physicians
or medical personnel are responsible for conditions in the RHU,
or for the resolution of inmate grievances which arise when
inmates are dissatisfied with RHU conditions. Rather, Mincy
simply alleges that when she was apprised of his circumstances,
Modery stated that she had no control over the conditions in the
RHU, or over the actions of the correctional officers and
encouraged Mincy to discuss such issues with the RHU officers. If attempts at
informal resolution are unsuccessful, as was the case here, an
inmate's proper course of action is to then file a grievance
via the prison grievance system, which enables inmates to
present issues concerning their incarceration to prison personnel
who are qualified to address such matters. For these reasons, the
motion will be granted as to the Eighth Amendment claim.
Mincy also alleges that Modery and Rush "acted in concert" with
the other named defendants in retaliating against him for
exercising his first amendment rights. In order to set forth a
cognizable conspiracy claim, a plaintiff cannot rely on broad or
conclusory allegations. D.R. by L.R. v. Middle Bucks Area
Vocational Technical Sch., 972 F.2d 1364, 1377 (3d Cir. 1992);
Rose v. Bartle, 871 F.2d 331, 366 (3d Cir. 1989); Durre v.
Dempsey, 869 F.2d 543, 545 (10th Cir. 1989). "To plead
conspiracy adequately, a plaintiff must set forth allegations
that address the period of the conspiracy, the object of the
conspiracy, and the certain ...