The opinion of the court was delivered by: Magistrate Judge Bissoon
MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
For the reasons that follow, it is respectfully recommended that the Motion to Dismiss filed by Defendants (Doc. 34) be granted in part and denied in part, without prejudice to Plaintiff's right to amend her Complaint to identify the actions taken (if any) by Defendants Boozel, Brunick and Mangis.
Plaintiff, Danielle Janae Campbell, was arrested and taken to the Allegheny County Jail at about 3:00 a.m. on January 30, 2009. Plaintiff alleges that she is bi-polar, and that she suffers from panic disorder and agoraphobia (Doc. 2, p. 1). Plaintiff was also intoxicated when arrested, and she concedes that she became "belligerent" when she was not given her own cell (Id.). When unnamed "guards" called her names, Plaintiff "had a few choice words" to offer in response. Plaintiff alleges that she was then placed in a restraint chair, at which point she was "not a danger to anyone and unable to move," but that Defendant Slaby nonetheless "used an entire can of mace" on Plaintiff and left her in a cell without any means of removing the mace (Id.). Plaintiff later worked free of the restraints in an attempt to use a sink, and an unidentified guard tightened the straps so hard that it caused abrasions on Plaintiff's armpits and legs (Id.).
Plaintiff seeks relief pursuant to the Civil Rights Act, 42 U.S.C. § 1983. She asserts that Defendants violated the Eighth Amendment's prohibition against cruel and unusual punishment by placing her in a restraint chair and then using mace on her. Plaintiff also alleges that she was denied Equal Protection of the laws pursuant to the Fourteenth Amendment because "not everyone brought in [to the jail] was subjected to being sprayed with mace." (Doc. 2, p. 3). Finally, Plaintiff alleges that Defendants retaliated against her for her exercise of her First Amendment rights (Id.). Defendants move to dismiss (Doc. 34) and Plaintiff has responded (Doc. 39).
Dismissal is appropriate under Federal Rule of Civil Procedure 12(b)(6) 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. County 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. , 129 S.Ct. 1937, 1949 (2009).
1. Count I - Excessive Force
The Eighth Amendment protects prisoners against cruel and unusual punishment, but it does not protect an inmate against every minimal use of force. Smith v. Mensinger, 293 F.3d 641, 648 (3d Cir. 2002). Force is deemed legitimate in a custodial setting so long as it is applied "in a good faith effort to maintain or restore discipline [and not] maliciously and sadistically to cause harm." Whitley v. Albers, 475 U.S. 312, 320-21 (1986) (quoting Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir. 1973)). A variety of factors are considered to determine if an application of force was applied maliciously and sadistically. These include: "the need for the application of force, the relationship between that need and the amount of force used, the threat reasonably perceived by the responsible officials, and any efforts made to temper the severity of a forceful response." Hudson v. McMillian, 503 U.S. 1, 7-8 (1992). Consideration of these factors permit the Court to make inferences concerning "whether the use of force could plausibly have been thought necessary" or whether the circumstances show "such wantonness with respect to the unjustified infliction of harm as is tantamount to a knowing willingness that it occur." Whitley, 475 U.S. at 321 (quoting Johnson, 481 F.2d at 1033).
In this case, Plaintiff has alleged facts which, if believed, would permit a jury to conclude that there was no need for any use of force once she had been placed in restraints, and that the use of mace at that point was both entirely unnecessary, and excessive in the amount used (Plaintiff alleges that an entire can was used on her). Plaintiff's further allegations of the taunting she experienced, considered along with the allegedly unnecessary and excessive use of mace after she had already been restrained, makes out a facially plausible Eighth Amendment claim because a jury could infer that the use of mace was done maliciously and sadistically to cause harm.
Defendants also note that, other than the allegation that Defendant Slaby sprayed the mace, no specific allegations are made against any other named Defendant. Plaintiff has not identified any actions taken by Defendants Mangis, Boozel or Brunick, and the ...