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Luciano v. Fago

November 23, 2010

BRYAN APONTE LUCIANO, PLAINTIFF
v.
J.F. FAGO; JEFFREY MADDEN; D.A. MCCOY; JAMES LINDBERG; L.S. KERNS-BARR; DR. IKRAM, A.K.A. JOHN DOE, DEFENDANTS



The opinion of the court was delivered by: Sylvia H. Rambo United States District Judge

Judge Rambo

MEMORANDUM

I. Background

Before the court is Plaintiff Bryan Aponte Luciano's ("Luciano") second amended complaint, (Doc. 38), and Defendants' motion to partially dismiss that complaint, (Doc. 43.) Luciano is an inmate currently confined at the State Correctional Institute at Houtzdale, however, all of his claims stem from his prior period of incarceration at the State Correctional Institute at Coal Township.

This case has a long procedural history. Luciano originally named sixty-six Defendants and alleged that these Defendants harassed, intimidated, threatened, and assaulted him, as well as, denied him necessities, access to court, and tampered with his mail. The court screened the case pursuant to 28 U.S.C. § 1915, found the complaint insufficient, and ordered Luciano to file an amended complaint. (See Doc. 9.) On September 8, 2009, Luciano filed an amended complaint. (Doc. 11.) In his amended complaint, Luciano named fourteen Defendants who where either current or former employees of the Pennsylvania Department of Corrections ("Corrections Defendants"), as well as an additional Defendant who was not employed by the Department of Corrections.

On November 18, 2009, the Corrections Defendants filed a motion to partially dismiss Luciano's amended complaint. By memorandum and order dated March 25, 2010, the court granted the Correction Defendants' motion, but permitted Luciano to amend his complaint and provide additional factual detail as to his claims against five of the Defendants. (See Doc. 35, Mem & Order, Mar. 25, 2010.)

On April 14, 2010, Luciano filed a second amended complaint. (Doc. 38.) In his second amended complaint, Luciano alleges separate excessive use of force claims against Defendants J.F. Fago, Jeffrey Madden, and D.A. McCoy. He also asserts a denial of access to courts claim against Defendant Lindberg. While denying the allegations and the merits, Corrections Defendants concede that the second amended complaint survives as to these claims.

Additionally, Luciano alleges two separate conditions of confinement claims against Defendant D.A. McCoy, and a due process claim against Defendant Kerns-Barr. The second amended complaint also asserts a conspiracy claim against all Defendants.*fn1 Corrections Defendants have challenged the sufficiency of the evidence as to each of these claims. Rather than reiterate the facts supporting all of Plaintiff's claims, the court will focus only on those claims actually challenged by the Corrections Defendants.

In his second amended complaint, Luciano brings civil rights claims against Corrections Defendants solely in their individual capacities. Luciano alleges the following as to Defendants McCoy and Kerns-Barr:

D.A. McCoy -- On February 18, 2008 Lt. D.A. McCoy was present on Pod-3 HC, Cell 2016 when plaintiff was physically assaulted by C.O. Butts and Sgt. Procopio. Plaintiff pleaded with Lt. McCoy to make [these] officers stop physically abusing me and said Lt. failed to do anything to stop the beating. Subsequent to said attack correction officers systematically began withholding mail, newspapers, food trays, showers and personal hygiene products and a dictionary bought by the Plaintiff. Plaintiff complained to prison staff and on or about April 13, 2008 Deputy McMillian assigned Lt. McCoy to investigate and personally address this Plaintiff's concerns and complaints. Defendant McCoy said that he would address the problems but nothing changed. Even after several COs were switched, the new officers continued with the same behavior of depriving Plaintiff of his food, mail and showers. When Plaintiff told Lt. McCoy of the continued behavior, Defendant McCoy stated that he was 'not the person to talk to.' Subsequently, Defendant McCoy was personally supervising when this Plaintiff was delivered a food tray minus the meat and bread. When alerted by Plaintiff the defendant acknowledged the problem but continued to pass out food to other inmates and never came back.

L.S. Kerns-Barr -- Plaintiff repeatedly tried to rectify the issues throughout this complaint on December 27, 2005, December 28, 2005, Several times in the year 2007 (exact dates unknown) and August 5, 2008. Defendant Kerns-Barr falsified documents and records, falsely accused and covered up the wrong doings of the other defendants. Said defendant denied Plaintiff the opportunity to present witnesses and repeatedly uped [sic] the severity of the sanctions.

Plaintiff was receiving misconducts for no reason and/or made up reasons and when Plaintiff went before Kerns-Barr as soon as this Defendant saw Plaintiff she stated, 'I don't know what the fuck you are doing here again' and before this Plaintiff could present his position she would respond, 'No, no I do not want to hear your bull shit you're either guilty or not guilty['] and when I would assert my innocence she would reply [']do you think I care, I find you guilty.['] Said Defendant would then go far and beyond the normal sanction ranges and sentence me harshly and made statements such as 'I'm going to make sure that you don't fucking get out of the RHU until you are an old man['] and would then tell the guards 'get this spit out of here before I slap him.'

(Doc. 38, Second Amend. Compl. ¶¶ 10, 12.) In addition to these allegations, Luciano states, in a section titled "Claims for Relief," that "[t]he actions of all cited Defendants was a conspiracy to violate the constitutional rights of this Plaintiff in violation of 42 U.S.C. § 1983." (Id. ¶ 14.) Luciano mentions a conspiracy only one other time in his second amended complaint, when he refers to the actions of J.F. Fago and other unnamed guards who allegedly assaulted him in his cell, and states that he thought that the actions taken by the guards on or about August 8, 2008, were a conspiracy. (See id. ¶ 8.)

II. Legal Standard - Motion to Dismiss

A complaint must do more than allege the plaintiff's entitlement to relief; it must "show such an entitlement with its facts." Fowler v. UPMC Shadyside, 578 F.3d 203, 211 (3d Cir. 2009)(citations omitted). As the Supreme Court instructed in Ashcroft v. Iqbal, - U.S.- , 129 S.Ct. 1937 (2009), "[w]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not 'show[n]'-'that the pleader is entitled to relief.'" Iqbal, 129 S.Ct. at 1950 (quoting Fed. R. Civ. P. 8(a) (alterations in original).) In other words, 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." Id. at 1949 (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements do not suffice." Id.

"To decide a motion to dismiss, courts generally consider only the allegations contained in the complaint, exhibits attached to the complaint and matters of public record." Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993) (citations omitted); see also Sands v. McCormick, 502 F.3d 263, 268 (3d Cir. 2007). The court may consider "undisputedly authentic document[s] that a defendant attaches as an exhibit to a motion to dismiss if the plaintiff's claims are based on the [attached] document[s]." Pension Benefit, 998 F.2d at 1196. Additionally, "documents whose contents are alleged in the complaint and whose authenticity no party questions, but which are not physically attached to the pleading, may be considered." Pryor v. Nat'l Collegiate Athletic Ass'n, 288 F.3d 548, 560 (3d Cir. 2002) (citation omitted); see also U.S. Express Lines, Ltd. v. Higgins, 281 F.3d 383, 388 (3d Cir. 2002) ("Although a district court may not consider matters extraneous to the pleadings, a document integral to or explicitly relied upon in the complaint may be ...


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