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Albert Juan Ortiz v. Prison Board Members

December 21, 2010

ALBERT JUAN ORTIZ, PLAINTIFF
v.
PRISON BOARD MEMBERS, ET AL., DEFENDANTS



The opinion of the court was delivered by: (Judge Rambo)

MEMORANDUM

Plaintiff Albert Juan Ortiz ("Ortiz"), an inmate presently confined at the State Correctional Institution, Graterford, Pennsylvania ("SCI-Graterford"), filed this pro se civil rights action pursuant to 42 U.S.C. § 1983. Named as defendants therein were the Dauphin County Prison Board and various Dauphin County Prison employees.

This matter concerns events which purportedly transpired during Plaintiff's prior confinement as a pre-trial detainee at the Dauphin County Prison, Harrisburg, Pennsylvania. Ortiz contends that he was subjected to unconstitutional conditions of confinement, and that Defendants violated his constitutional rights of access to the courts and freedom of speech.

I. Procedural History

By Memorandum and Order dated October 7, 2009, the claims against Defendants Dauphin County Prison, City of Harrisburg, and Mayor Reed were dismissed. (Doc. 12.) Thereafter, Defendant Lisa Reitz, R.N. filed a motion to dismiss. The remaining Defendants subsequently filed a separate motion to dismiss. However, by Order dated June 22, 2010, Judge Vanaskie granted Plaintiff's motion requesting leave to file an Amended Complaint and accepted his proposed Amended Complaint. (Doc. 33-3.)

This matter was subsequently reassigned to the undersigned on June 30, 2010. On July 12, 2010, Reitz filed a motion to dismiss the Amended Complaint and supporting brief. (Doc. 35.)*fn1 Reitz seeks dismissal on the basis of non-exhaustion of administrative remedies and, in the alternative, on the grounds that a viable constitutional claim has not been stated. Opposing briefs were filed by Plaintiff on August 6, 2010, and August 24, 2010. Accordingly, Reitz's motion is ripe for consideration.

II. Standard of Review for Motion to Dismiss

Rule 12(b)(6) of the Federal Rules of Civil Procedure provides for the dismissal of complaints that fail to state a claim upon which relief can be granted. When ruling on a motion to dismiss under Rule 12(b)(6), the court must "accept as true all factual allegations in the complaint and all reasonable inferences that can be drawn therefrom, and view them in the light most favorable to the plaintiff." Kanter v. Barella, 489 F.3d 170, 177 (3d Cir. 2007)(quoting Evancho v. Fisher, 423 F.3d 347, 350 (3d Cir. 2005)). The plaintiff must present facts that, if true, demonstrate a plausible right to relief. See Fed. R. Civ. P. 8(a)(stating that the complaint should include "a short and plain statement of the claim showing that the pleader is entitled to relief"); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)(requiring plaintiffs to allege facts sufficient to "raise a right to relief above the speculative level"). Rule 8 demands "more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, ___ U.S. ____ ,129 S.Ct 1937, 1949 (2009).

This requirement "calls for enough facts to raise a reasonable expectation that discovery will reveal evidence of" the necessary elements of the plaintiff's cause of action. Twombly, 550 U.S. at 556. The reviewing court must determine whether the complaint "contain[s] either direct or inferential allegations respecting all the material elements necessary to sustain recovery under some viable legal theory." Id. at 562.

A civil rights complaint should allege the conduct violating plaintiff's rights, the time and the place of that conduct, and the identity of the responsible officials. "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements do not suffice." Iqbal, 129 S.Ct at 1949. Legal conclusions must be supported by factual allegations and the complaint must state a plausible claim for relief. See id. at 1950. see also Phillips v. County of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008). It is additionally noted that pro se pleadings are to be construed liberally, Haines v. Kerner, 404 U.S. 519, 520 (1972).

In addition, Plaintiff describes himself as being a pre-trial detainee. The Third Circuit Court of Appeals has observed that claims by pre-trial detainees have parameters that are coextensive with those of the Eighth Amendment's prohibition against cruel and unusual punishment. Keller v. County of Bucks, 209 F. App'x 201, 205 (3d Cir. 2006).

III. Exhaustion of Administrative Remedies

The gist of the claim against Reitz is that she failed to give Plaintiff previously prescribed high blood pressure and heart medication during a prolonged period of time when the prison was in a lock down. Reitz generally argues that entry of dismissal in her favor is appropriate because, "Plaintiff has failed to show" that he exhausted the administrative remedies which were available to him at the Dauphin County Prison, and his Amended Complaint "does not allege that he made any complaints" with regard to his allegations to anyone at the Dauphin County Prison, "let alone that he filed a proper grievance." (Doc. 36 at 6.)

Ortiz counters that "a grievance system was utilized as a way to obtain some relief and avoid having to raise a civil rights action." Doc. 39 ΒΆ 15. Plaintiff adds that Defendants were given fair notice of ...


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