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Thomas Julian v. Jeffrey Beard

November 4, 2011

THOMAS JULIAN, PLAINTIFF,
v.
JEFFREY BEARD, ET AL.,
DEFENDANTS.



The opinion of the court was delivered by: Chief Magistrate Judge Lisa Pupo Lenihan

Chief District Judge Gary Lancaster

REPORT AND RECOMMENDATION

I. RECOMMENDATION

It is respectfully recommended that Defendants' Partial Motion to Dismiss (ECF No. 26) be granted and that the Complaint be dismissed against Defendants Beard, Zwierzyna and Harlow in their individual capacities and that it be dismissed against all of the Defendants in their official capacities.

II. REPORT

Plaintiff, Thomas Julian, an inmate previously confined at the State Correctional Institution at Mercer, Pennsylvania, commenced this action under 42 U.S.C. § 1983 alleging violations of his constitutional rights against the following Defendants: Jeffrey Beard, Secretary of the Pennsylvania Department of Corrections (DOC); Kathleen Zwierzyna, Director of the Bureau of Standards, Practices and Sentence computation at DOC; Michael Harlow, former Superintendent of SCI-Mercer; Major Zetwo, former Security Captain of SCI-Mercer; William Woods, former Unit Manager at SCI-Mercer; Officer Albaugh, Gang Coordinator at SCI-Mercer; Kimberly Boal, Corrections Health Care Administrator at SCI-Mercer; Captain Freehling; and Sergeant Ward. All of the Defendants are sued in their individual and official capacities.

A. Standard of Review

Presently pending is the Partial Motion to Dismiss filed by Defendants Beard, Zwierzyna and Harlow (ECF No. 26). A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the legal sufficiency of a complaint. In deciding this motion, the court must read the complaint in the light most favorable to the plaintiff and all well-pleaded, material allegations in the complaint must be taken as true. Estelle v. Gamble, 429 U.S. 97 (1976). The court is bound to give the plaintiff the benefit of every reasonable inference to be drawn from the "well-pleaded" allegations of the complaint. Retail Clerks Intern. Ass'n, Local 1625, AFL-CIO v. Schermerhorn, 373 U.S. 746, 753 n. 6 (1963). A viable complaint must include "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v.Twombly, 550 U.S. 554, 556 (2007) (rejecting the traditional 12 (b)(6) standard set forth in Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). The court must accept as true all allegations of the complaint and all reasonable factual inferences must be viewed in the light most favorable to the plaintiff. Angelastro v. Prudential-Bache Securities, Inc., 764 F.2d 939, 944 (3d Cir. 1985).

The Court, however, need not accept inferences drawn by the 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. Bell Atlantic Corp., 550 U.S. at 555 (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). "Factual allegations must be enough to raise a right to relief above the speculative level." Bell Atlantic Corp., 550 U.S. at 555. See also Ashcroft v. Iqbal, ___ U.S. ___, 129 S.Ct. 1937, 1951 (U.S. 2009) (holding that, while the Complaint need not contain detailed factual allegations, it must contain more than a "formulaic recitation of the elements" of a constitutional claim and must state a claim that is plausible on its face) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) and providing further guidance on the standard set forth therein).

Courts generally consider the allegations of the complaint, attached exhibits, and matters of public record in deciding motions to dismiss. Pension Benefit Guar. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993). Factual allegations within documents described or identified in the complaint also may be considered if the plaintiff's claims are based upon those documents. Id. (citations omitted). Moreover, a district court may consider indisputably authentic documents without converting a motion to dismiss into a motion for summary judgment. Spruill v. Gillis 372 F.3d 218, 223 (3d Cir.2004); In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997).

Finally, a court must employ less stringent standards when considering pro se pleadings than when judging the work product of an attorney. Haines v. Kerner, 404 U.S. 519, 520 (1972). In a § 1983 action, the court must liberally construe the pro se litigant's pleadings and "apply the applicable law, irrespective of whether a pro se litigant has mentioned it by name." Higgins v. Beyer, 293 F.3d 683, 688 (3d Cir. 2002) (quoting Holley v. Dep't of Veteran Affairs, 165 F.3d 244, 247-48 (3d Cir. 1999)). See also Nami v. Fauver, 82 F.3d 63, 65 (3d Cir. 1996) ("Since this is a § 1983 action, the [pro se] plaintiffs are entitled to relief if their complaint sufficiently alleges deprivation of any right secured by the Constitution.") (quoting Higgins, 293 F.3d at 688 ). Notwithstanding this liberality, pro se litigants are not relieved of their obligation to allege sufficient facts to support a cognizable legal claim. See, e.g., Taylor v. Books A Million, Inc., 296 F.3d 376, 378, (5th Cir. 2002); Riddle v. Mondragon, 83 F.3d 1197, 2102 (10th Cir. 1996).

B. Relevant Allegations and Facts of Record

During the relevant time period, Plaintiff was an inmate incarcerated at the State Correctional Institution (SCI) at Mercer. He claims that in May of 2009 he fell from a top bunk due to losing consciousness and suffered a broken foot from the fall. At the time of this incident, Plaintiff had a "bottom bunk housing only" order from the SCI-Mercer medical department. He claims that he informed Defendants Zweto, Freehling, Woods and Boal of his "bottom-bunk" status but none of them took any action. He claims that housing unit officer Deets stated that Plaintiff's medical profile on the DOC computer system known as DOCNet did not indicate a bottom-bunk status. Plaintiff later learned that DOCNet had been upgraded/changed and that some medical information was located elsewhere. Plaintiff contends that there was a lack of sufficient training on the new system to educate staff about DOCNet, and regardless, a phone call would have confirmed the existence of a bottom-bunk order.

On May 22, 2009, Plaintiff filed Grievance MER 274134-09 concerning the incident (ECF No. 2-3, p. 1). On May 25, 2009, Defendant Freehling moved Plaintiff to a bottom-bunk. On May 29, 2009, Defendant Boal responded to Plaintiff's grievance confirming that he did indeed have an active medical order for Bottom Bunk status (ECF No. 2-3, ...


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