The opinion of the court was delivered by: Judge Arthur J. Schwab
Chief Magistrate Judge Amy Reynolds Hay
MEMORANDUM OPINION AND ORDER
Lacy E. Tilley, ("Plaintiff") is a federal prisoner who was sentenced
in one of his federal criminal trials on July 15, 2008.*fn1
He is also awaiting sentencing on other federal criminal
charges in two other cases before Judge Conti.*fn2
Plaintiff is currently being housed in the Allegheny County Jail as a
federal prisoner. He has been there since August 2007. ECF No. 5 at 4,
In March 2009, Plaintiff filed his original complaint, in which, Plaintiff named the U.S. Marshal Supervisor, and 11 employees of the Allegheny County Jail ("ACJ") as defendants.
ECF No. 5. In that original complaint, Plaintiff complained about the conditions of his confinement in the ACJ. Subsequently, Plaintiff filed, as of right, an amended complaint, ECF No. 15, wherein he complained of many of the same conditions of confinement as he had in the original complaint but added four defendants: 1) Allegheny County Health Services ("ACHS"); 2) Dana Philips, director of ACHS; 3) Dr. Mebane, a psychiatrist who works with ACHS; and 4) Nurse Nancy (collectively "the Medical Defendants"), adding a claim of medical deliberate indifference against these four new defendants.*fn3 In the amended complaint, Plaintiff dropped three defendants who worked at the ACJ, namely, Lance Bohn, Barry Emerick, and Captain Pofi and he added one other defendant who worked at ACJ, namely, Captain Demore.
The operative complaint named as defendants, inter alia, the Allegheny County Jail; Ramon Rustin, the warden of the ACJ; Captains Leight, Demore, Stanton and Maust; Sergeants Coulter and Kengerski; and Corrections Officers ("CO") Butler and Kovac, (collectively, "the ACJ Defendants").*fn4 The ACJ Defendants filed a motion to dismiss, ECF No. 85, and a brief in support. ECF No. 86. Plaintiff was ordered to file a response to the ACJ Defendants' motion to dismiss. ECF No. 87. Plaintiff filed his response. ECF No. 89 at 3 to 4.
As the United States Supreme Court held in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), a complaint may properly be dismissed pursuant to Fed. R. Civ. P. 12 (b)(6) if it does not allege "enough facts to state a claim to relief that is plausible on its face." Id. at 1974 (rejecting the traditional 12 (b)(6) standard set forth in Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). Under this standard, the court must, as a general rule, accept as true all factual allegations of the Complaint and all reasonable inferences must be viewed in the light most favorable to plaintiff. Angelastro v. Prudential-Bache Securities, Inc., 764 F.2d 939, 944 (3d Cir. 1985). Nevertheless, under the 12(b)(6) standard, a "court need not . . . accept as true allegations that contradict matters properly subject to judicial notice or by exhibit." Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001), amended by, 275 F.3d 1187 (9th Cir. 2001). Nor must the Court accept inferences drawn by plaintiff if they are unsupported by the facts as set forth in the complaint. See California Pub. Employee Ret. Sys. v. The Chubb Corp., 394 F.3d 126, 143 (3d Cir. 2004) (citing Morse v. Lower Merion School Dist., 132 F.3d 902, 906 (3d Cir. 1997)). Nor must the court accept legal conclusions set forth as factual allegations. Twombly, 550 U.S. at 555 (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)). Furthermore, it is not proper for a court to assume that "the [plaintiff] can prove facts which [he or she] has not alleged, or that the defendants have violated the ... laws in ways that have not been alleged." Assoc.'d Gen. Contractors of California, Inc. v. California State Council of Carpenters, 459 U.S. 519, 526 (1983).
Recently, the Supreme Court refined its standard for summary dismissal of a Complaint that fails to state a claim in Ashcroft v. Iqbal, __ U.S. __, 129 S.Ct. 1937 (May 18, 2009). Expanding on its decision in Twombly, the Supreme Court identified two working principles underlying the failure to state a claim standard:
First, the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.. Rule 8 marks a notable and generous departure from the hyper-technical, code-pleading regime of a prior era, but it does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions. Second, only a complaint that states a plausible claim for relief survives a motion to dismiss. Determining whether a complaint states a plausible claim for relief will.be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense. But where 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." Fed. Rule Civ. Proc. 8(a)(2).
Iqbal, 129 S.Ct. at 1949-50. To meet Fed.R.Civ. P. No. 8(a)(2)'s notice pleading requirements, "the complaint must describe the claim in sufficient detail to give the defendant 'fair notice of what the ... claim is and the grounds upon which it rests,'" Twombly, 550 U.S. at 555 (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). See also 5C Wright & Miller, Federal Practice and Procedure § 1363 at 112 (3d ed. 2004) ("A motion to dismiss for failure to state a claim for relief under Rule 12(b)(6) goes to the sufficiency of the pleading under Rule 8(a)(2).") (citations omitted).
In addition to the complaint, courts may consider matters of public record and other matters of which a court may take judicial notice, court orders, and items appearing in the record of the case when adjudicating a motion to dismiss under Rule 12(b)(6). Winer Family Trust v. Queen, 503 F.3d 319, 328 -29 (3d Cir. 2007); Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1385 n.2 (3d Cir. 1994)(in adjudicating motions to dismiss, courts may "consider matters of public record, orders, exhibits attached to the complaint and items appearing in the record of the case."). In addition, the Court of Appeals in Spruill v. Gillis, 372 F.3d 218, 223 (3d Cir. 2004), held that a "defendant may submit an indisputably authentic [document] to the court to be considered on a motion to dismiss[.]"
The question to be resolved is: whether, taking the factual allegations of the complaint, which are not contradicted by the indisputably authentic exhibits and matters of which judicial notice may be had, and taking all reasonable inferences to be drawn from those uncontradicted factual allegations of the complaint, are the "factual allegations . . . enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true even if doubtful in fact[.]" Twombly, 550 U.S. at 555. Or, put another way, a complaint may be dismissed pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief can be granted if it does not plead "enough facts to state a claim to relief that is plausible on its face." Id. at 570.
In addition, because Plaintiff was, at the time of the filing of this civil action,*fn5 a prisoner and because he named governmental entities or employees thereof as defendants, the screening provisions of the Prisoner Litigation Reform Act ("PLRA") found at 28 U.S.C. § 1915A apply herein. In addition, because he was a prisoner, granted leave to proceed in forma pauperis to prosecute this suit, the screening provisions of 28 U.S.C. § 1915(e) also apply. Lastly, because he was a prisoner who filed a civil rights action, complaining of prison conditions, the screening provisions of 42 U.S.C. § 1997e apply. The court's obligation to dismiss a complaint under the PLRA screening provisions for complaints that fail to state a claim is not excused even after defendants have filed a motion to dismiss. See, e.g., Lopez v. Smith, 203 F.3d 1122, 1126 n.6 (9th Cir. 2000). Hence, if there is a ground for dismissal which was not relied upon by a defendant in a motion to dismiss, the court may nonetheless sua sponte rest its dismissal upon such ground pursuant to the screening provisions of the PLRA. See Lopez; Dare v. U.S., CIV.A.06-115E, 2007 WL 1811198, at *4 (W.D.Pa. June 21, 2007), aff'd, 264 F.App'x 183 (3d Cir. 2008).
The ACJ Defendants move to dismiss the complaint based upon the lack of personal involvement of Defendants Rustin, DeMore, Stanton, Leight and Coulter. ECF No. 86 at 6 to 7. They essentially argue that Plaintiff has failed to plead personal involvement of these five defendants and that Plaintiff attempts to render them liable solely on the basis of respondeat superior.
In a civil rights action, a plaintiff must show that the defendants "have personal involvement in the alleged wrongs." Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988). "Respondeat superior is a doctrine of vicarious liability based upon public policy [and] the notion that the person who benefits by the acts of the servant must pay for wrongs committed by the servant; the one held liable as master need not be at fault in any way." McClelland v. Facteau, 610 F.2d 693, 695 (10th Cir. 1979). However, the rule is that in Section 1983 cases, liability based upon respondeat superior is not available. Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988)("liability [in a civil rights action] cannot be predicated solely on the operation of respondeat superior.").*fn6
With respect to Defendant Warden Rustin, the ACJ Defendants point out that "Plaintiff fails to even mention Defendant Warden Rustin" in any of the ten specific "counts" that Plaintiff brings in the operative complaint. ECF No. 86 at 7. The Court agrees. Other than listing Warden Rustin in the caption and in the introductory list of Defendants, ECF No. 15 at 3, ¶ 7, Plaintiff fails to mention Defendant Rustin again in the complaint by name. Hence, the complaint fails to reveal any personal involvement by Defendant Rustin.
In his response, Plaintiff does say that "Rustin, Demore, Stanton, Leight and Culter [sic] were all informed of my problem and all acted affirmatively to support the continuation of it." ECF No. 89 at4, ¶ 26. The problem is that this allegation is not contained in the complaint. Grayson v. Mayview State Hospital, 293 F.3d 103, 109 n.9 (3d Cir. 2002)("For the sake of clarity, a prisoner plaintiff (or any other plaintiff) should not be able effectively to amend a complaint through any document short of an amended pleading."). Accord Commonwealth of Pa. ex. rel. Zimmerman v. PepsiCo, Inc., 836 F.2d 173, 181 (3d Cir. 1988) ("[I]t is axiomatic that the complaint may not be amended by the briefs in opposition to a motion to dismiss."). Moreover, even if we permitted Plaintiff leave to amend his complaint yet again in order to include this new allegation, the simple allegation in Plaintiff's response is inadequate under Twombly and Iqbal to state a claim against Rustin and constitutes nothing more than a mere conclusion, which is insufficient under Twombly. Bell Atlantic Corp. v. Twombly, 127 S.Ct. at 1964-65 ("a plaintiff's obligation to provide the 'grounds' of his 'entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do[.]"). Plaintiff fails to say how they were made aware of his "problem" or when they were made aware of the problem or to even specify what "the problem," out of his many problems, was. In performing our "context-specific task that requires the reviewing court to draw on its judicial experience and common sense" we find that even considering this new allegation, contained in Plaintiff's response, "the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, [and, so,] the complaint has alleged-but it has not 'show[n]'-'that the pleader is entitled to relief.'" Iqbal, 129 S.Ct. at 1950. Hence, the complaint must be dismissed as against Defendant Rustin.
Similarly, Defendant Leight is mentioned only four times by name in the operative complaint. ECF No. 15 at ¶¶ 125; 210; 228 and 233.*fn7 While Plaintiff at least explicitly mentions Defendant Leight in the body of the complaint, his allegations against Defendant Leight are similarly conclusory and fail to state a claim. The first allegation is the Defendants Leight and Demore interviewed Plaintiff. There is no constitutional violation in interviewing a prisoner. The second allegation is that Defendant Leight and others "worked in collaboration" to either themselves cause Plaintiff to be subjected to disparate treatment or allow others to do so. Reading this allegation liberally, given Plaintiff's pro se status, we find this allegation of "working in collaboration" to essentially constitute an allegation that the Defendants all conspired together to either subject Plaintiff to disparate treatment or to allow others to do so. However, as the Court of Appeals has explained "[t]he allegations [of conspiracy] must be sufficient to 'describe the general composition of the conspiracy, some or all of its broad objectives, and the defendant's general role in that conspiracy.'" Rose ...