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John Harper v. Jeffery Albo

August 24, 2011


The opinion of the court was delivered by: O'neill, J.


Pro se plaintiff John Harper is a state prisoner currently incarcerated at the State Correctional Institution at Frackville. On January 4, 2011, plaintiff filed this lawsuit against Community Corrections Center at Allentown employees Jeffery Albo*fn1 and Jamie Luquis.*fn2 In his complaint, plaintiff alleges that defendants violated his Eighth Amendment right to be free from cruel and unusual punishment. Presently before me are defendants' motion to dismiss and plaintiff's response.*fn3


Plaintiff was incarcerated at CCC Allentown in February 2010. Am. Compl. at 4.*fn4

Approximately two weeks before the events that gave rise to this suit, defendant Albo, a counselor at CCC Allentown, called plaintiff into his office. Id. Albo informed plaintiff that he would likely be a target of the "Bloods" street gang. Id. He also asked whether plaintiff knew of any inmates currently being recruited by the gang. Id. Plaintiff responded in the negative. Id.

Approximately two weeks after the conversation with Albo, plaintiff was assaulted by Alvin Davis, another inmate incarcerated at CCC Allentown. Id. According to plaintiff, Davis was either a current member of the Bloods gang or was being initiated into the gang at the time of the assault. Id. As a result of the attack, plaintiff alleges that he broke his hand and suffers from impaired vision in his left eye. Id.

On February 19, 2010, plaintiff was transferred to SCI-Frackville by "agent Anthony Mondello." Id. at 3. There, in an attempt to report what he viewed as misconduct by Albo, plaintiff asked the correctional officer on duty for a grievance form. Id. The officer informed plaintiff that the prison had run out of grievance forms. Id. Plaintiff repeated his request for a grievance form every day for the next thirty days. Id. Each time, prison officials denied his request. Id. Plaintiff alleges that he stopped requesting a grievance form after correctional officers informed him that it was too late to file a grievance. Id.


Federal Rule of Civil Procedure 12(b)(6) permits a court to dismiss all or part of an action for "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6).

Typically, "a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations," though plaintiff's obligation to state the grounds of entitlement to relief "requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). "Factual allegations must be enough to raise a right to relief above the speculative level on the assumption that all of the allegations in the complaint are true (even if doubtful in fact)." Id. (citations omitted). The complaint must state "'enough facts to raise a reasonable expectation that discovery will reveal evidence of' the necessary element." Wilkerson v. New Media Tech. Charter School Inc., 522 F.3d 315, 321 (3d Cir. 2008), quoting Twombly, 550 U.S. at 556. The Court of Appeals has recently made clear that after Ashcroft v. Iqbal, --- U.S. ---, 129 S. Ct. 1937, 1955, 173 L. Ed. 2d 868 (2009), "conclusory or 'bare-bones' allegations will no longer survive a motion to dismiss: 'threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.' To prevent dismissal, all civil complaints must now set out 'sufficient factual matter' to show that the claim is facially plausible." Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009), quoting Iqbal, 129 S. Ct. at 1949. The Court also set forth a two part-analysis for reviewing motions to dismiss in light of Twombly and Iqbal: "First, the factual and legal elements of a claim should be separated. The District Court must accept all of the complaint's well-pleaded facts as true, but may disregard any legal conclusions. Second, a District Court must then determine whether the facts alleged in the complaint are sufficient to show that the plaintiff has a 'plausible claim for relief.'" Id. at 210-11, quoting Iqbal, 129 S. Ct. at 1950. The Court explained, "a complaint must do more than allege the plaintiff's entitlement to relief. A complaint has to 'show' such an entitlement with its facts." Id., citing Phillips v. Cnty. of Allegheny, 515 F.3d 224, 234-35 (3d Cir. 2008). "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.'" Iqbal, 129 S. Ct. at 1949.

Additionally, pleadings that are pro se must be held to "less stringent standards than formal pleadings drafted by lawyers." Dickerson v. Brooks, No. 06-289, 2007 WL 4689001, at *2 (W.D. Pa. Oct. 31, 2007), citing Haines v. Kerner, 404 U.S. 519, 520-521 (1972); United States ex rel. Montgomery v. Bierley, 141 F.2d 552, 555 (3d Cir. 1969), noting that a petition prepared by a prisoner may be inartfully drawn and should be read "with a measure of tolerance." Pro se complaints, especially from civil rights plaintiffs, should be read liberally, as prisoners in particular are often at an informational disadvantage that may prevent them from pleading the full factual predicate for their claims. Alston v. Parker, 363 F.3d 229, 233-34 & n.6 (3d Cir. 2004). Because this plaintiff is a pro se litigant, I will consider his allegations of fact and make inferences where it is necessary and appropriate.


Defendants argue that the complaint should be dismissed for several reasons. First, both defendants assert that they are immune from civil rights claims brought under 42 U.S.C. § 1983. Second, they argue that the complaint does not allege deliberate indifference. Third, they argue that plaintiff's claims should be dismissed for failure to exhaust the available administrative remedies because plaintiff did not file a grievance with respect to the injury he suffered at CCC Allentown. Finally, defendant Luquis argues that the claims against him must be dismissed because they are based on the legally impermissible theory of respondeat superior.

I. The Claims Against Defendants in Their Official Capacity Will Be Dismissed Defendants argue first that plaintiff's claims against them in their official capacity must be dismissed.*fn5 The Eleventh Amendment provides that "the judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State." U.S. Const. amend. XI. Simply stated, "state governments . . . are immune from suit in federal court under the Eleventh Amendment." Betts v. New Castle Youth Devel. Ctr., 621 F.3d 249, 253-54 (3d Cir. 2010). "State sovereign immunity extends to subsidiary units and individual state employees sued in their official capacity." Druz v. Noto, 415 F. App'x 444, 446 (3d Cir. 2011). "A suit against a state official in his or her official capacity is not a suit against the official ...

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