The opinion of the court was delivered by: Judge Munley
Before the court are plaintiff's objections (Doc. 49) to Magistrate Judge Malachy E. Manion's report and recommendation (Doc. 48) that defendants' motion be granted and plaintiff's complaint be dismissed with prejudice. The matter has been fully briefed and is ripe for disposition.
While incarcerated at the Monroe County Correctional Facility (MCCF), Plaintiff Telepo was transported to the Monroe County Courthouse on April 14, 2008 and May 12, 2008 for hearings regarding his sentencing. (Plaintiff's Brief in Opposition to Defendants' Motion to Dismiss (Doc. 32)(hereinafter "Plaintiff's MTD Opposition Brf.") at 1-2). The plaintiff allegedly requested a private space to speak with his attorney while in the holding area at the courthouse and was denied such accommodations by the sheriff's deputies. (Amended Complaint (Doc. 28)(hereinafter "Am. Comp.") at 2). Because there were other inmates and sheriff's deputies nearby, the plaintiff maintains that he declined to disclose information to his public defender that would have led to a lower prior record score and, as a result, a shorter sentence. (Id. at 2-3). Plaintiff feared he would lose his attorney-client privilege if he spoke with his attorney where others could overhear their conversation. (Id.).
The plaintiff's amended complaint asserts claims under 42 U.S.C. § 1983 against Sheriff Todd A. Martin ("the sheriff") and against Monroe County Commissioners Suzanne McCool, Donna Asure, and Therese Merli ("the commissioners") ("the sheriff" and "the commissioners" together as "defendants") (Id.). The plaintiff asserts that the defendants' refusal or failure to provide "private attorney consultation facilities" constituted a violation of (1) his rights as a prisoner to access the courts and (2) his right to confidential communication with his attorney. (Id.). The sheriff allegedly "[failed to provide adequate] training, supervision and discipline to sheriff's deputies under his authority with respect to the plaintiff's constitutional rights[.]" (Id. at 2). The commissioners' challenged conduct was that they "have not allocated the proper funds needed to renovate or construct adequate consultation facilities that are soundproof and provided with adequate furnishings and ventilation." (Id. at 3).
The defendants filed a motion to dismiss (Doc. 30) the amended complaint (Doc. 28) pursuant to FED. R. CIV. P. 12(b)(6). Magistrate Judge Mannion recommended the dismissal of the plaintiff's amended complaint with prejudice. (Doc. 48 at 17). The plaintiff challenged the report and recommendation with a motion to alter judgment. (Doc. 49).
In disposing of objections to a magistrate judge's report and recommendation, the district court must make a de novo determination of those portions of the report to which objections are made. 28 U.S.C. § 636 (b)(1)(C); see also Henderson v. Carlson, 812 F.2d 874, 877 (3d Cir. 1987). This court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The district court judge may also receive further evidence or recommit the matter to the magistrate judge with instructions. Id.When no objections to a portion of the report and recommendation have been filed, we must determine whether a review of the record evidences plain error or manifest injustice to decide whether to adopt the report. See, e.g., Sullivan v. Cuyler, 723 F.2d 1077, 1085 (3d Cir. 1983); FED. R. CIV. P. 72(b) 1983 Advisory Committee Notes ("When no timely objection is filed, the court need only satisfy itself that there is no clear error on the face of the record to accept the recommendation"); 28 U.S.C. § 636(b)(1).
Here, the court ruled on the defendant's motion to dismiss the complaint for failure to state a claim under FED. R. CIV. P. (b)(6). When a Rule 12(b)(6) motion is filed, the sufficiency of a complaint's allegations are tested. The issue is whether the facts alleged in the complaint, if true, support a claim upon which relief can be granted. In deciding a Rule 12(b)(6) motion, the court must accept as true all factual allegations in the complaint and give the pleader the benefit of all reasonable inferences that can fairly be drawn therefrom, and view them in the light most favorable to the plaintiff. Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997).
III. PLAINTIFF'S OBJECTIONS
This court will address each of the plaintiff's objections to Magistrate Judge Mannion's report and recommendations in turn.
A. Plaintiff's Assertion of Direct Liability Against the Defendants
Magistrate Judge Mannion found that the plaintiff's complaint was insufficient to support direct liability against the sheriff and the county commissioners. (Doc. 48 at 14-16). The plaintiff objects and argues that the sheriff and county commissioners should be held directly liable under Section 1983 based on the failure to supervise the sheriff's deputies or to appropriate funds and direct the construction of dedicated private meeting facilities for prisoners temporarily held at the county courthouse. (Plaintiff's Motion to Amend or Alter the Judgment (Doc. 49)(hereinafter "Plaintiff's MAJ") at 6-7).
Regarding personal liability under Section 1983, the Court of Appeals for the Third Circuit has stated that the standard for personal liability under section 1983 is the same as that for municipal liability. See Sample v. Diecks, 885 F.2d 1099, 1118 (3d Cir.1989). That standard was enunciated in Monell v. New York City Dept. of Social Services, 436 U.S. 658, 694 (1978): "when execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts and acts may fairly be said to represent official policy, inflicts the injury... the government as an entity [and the policy-maker individually] is responsible under section 1983." Where, as here, the policy in question concerns a failure to train or supervise municipal employees, liability under section 1983 requires a showing that the failure amounts to "deliberate indifference" to the rights of persons with whom those employees will come into contact. City of Canton v. Harris, 489 U.S. 378, 388 (1989).
Carter v. City of Philadelphia, 181 F.3d 339, 356-57 (3d Cir. 1999) (emphasis added).
In order to make out a claim under Section 1983, the plaintiff must establish that each defendant had personal involvement in the alleged wrongs. Rizzo v. Goode, 423 U.S. 362, 375-76 (1976); Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988). Individual liability under Section 1983 must be direct rather than vicarious in nature and cannot be based solely on the operation of doctrine of respondeat superior. Id. While the defendant must play an "affirmative part" in the alleged misconduct to be individually liability under Section 1983, non-feasance on the part of the defendant may be sufficient to constitute an affirmative role in the misconduct if the individual defendant in a supervisory role had actual knowledge of and acquiesced in his subordinate's violations" of the plaintiff's rights. Baker v. Monroe Twp., 50 F.3d 1186, 1191 n.3 (3d Cir. 1995) (citations omitted).
However, the plaintiff's complaint against the individual county commissioners fails for want of alleging that they were directly involved in violating the plaintiff's rights. The plaintiff's complaint states that Defendants McCool, Asure and Merli, Monroe County Commissioners, violated my constitutional rights... by not providing me adequate consultation facilities within the Monroe County Courthouse... the defendants have not allocated the proper funds needed to renovate or construct adequate consultation facilities that are soundproof and provided with adequate furnishings and ventilation. These ...