Jose Antonio Ramos v. Jeffrey A. Beard

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

(Magistrate Judge Smyser)

MEMORANDUM

Before the court is a report of the magistrate judge to whom this matter is referred in which he recommends that the motion to dismiss filed by Defendants Beard and Klopotoski (hereinafter "Defendants") be denied. The two defendants object to the report and recommendation.

In his complaint, Plaintiff alleges that Defendants were fully aware of Eighth Amendment violations toward Plaintiff and never investigated those allegations. Defendants argue that the complaint fails to state a claim upon which relief can be granted that they were deliberately indifferent to a serious threat of harm to Plaintiff. Their basic argument is that Plaintiff's complaint does not allege sufficient personal involvement and that liability cannot be imposed solely on the basis of respondeat superior.

The magistrate judge points out that Defendants were fully aware of the violations against him because he submitted written complaints to them and spoke to them personally and they could have investigated his complaints and did not. The magistrate judge relies upon Atkinson v. Taylor, 316 F.3d 257, 270-71 (3d Cir. 2003), in support of that conclusion. Defendants argue that this case is distinguishable because it was decided before Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) and Ashcroft v. Iqbol, U.S. (2009), 129 S. Ct. 1937 (2009). They claim that Plaintiff has not pled sufficient facts that it is plausible that Defendants had notice that Plaintiff's complaints had validity.

Plaintiff sent four written complaints to Klopotoski and made a verbal complaint in the presence of both Defendants. While these facts may not ultimately support liability, they are certainly sufficient to preclude dismissal based upon an inadequate pleading of personal involvement and meet the plausibility standard required by Twombly and Iqbol.

The report and recommendation will be adopted.

Sylvia H. Rambo United States District Judge

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

JOSE ANTONIO RAMOS, Plaintiff v. JEFFREY A. BEARD, et al., Defendants

CIVIL NO. 1:10-CV-1533

(Judge Rambo)

(Magistrate Judge ...