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Kareem Garrett v. George Wagner

March 15, 2012

KAREEM GARRETT,
PLAINTIFF,
v.
GEORGE WAGNER, WARDEN OF BERKS COUNTY PRISON;
COMMISSIONER KEVIN BARNHARDT;
NURSE LORI; NURSE FAY; VICTORIA GESSNER, M.D.;
NURSE MEREDITH; OFFICER VOLLNER; CYNTHIA SHELTON, MEDICAL SUPERVISOR; JESSICA YERGER, TREATMENT SUPERVISOR;
JAY PHILLIPS; S. SWARTELY, MENTAL HEALTH SUPERVISOR;
JOSEPH P. DOW, OFFICER;
OFFICER LAZUR; OFFICER FISHER; JACKIE BROWN, COUNSELOR;
NURSE PAM; AMY FICH, COUNSELOR;
PETER DAMITER; PAULA A. DILLMAN MCGOWAN, CRNP;
OFFICER NIEVES; FRANCO TASSONE, JR., SERGEANT;
S. JEFFERSON, OFFICER; J. KLINE, OFFICER; DAVID KOPE, OFFICER; DWIGHT RESCORLA, SERGEANT; MIGUEL CASTRO, LIEUTENANT; NURSE CHARMAINE; AND JESSE KIRSCH, DOCTOR, DEFENDANTS.



The opinion of the court was delivered by: DuBOIS, J.

MEMORANDUM

I. INTRODUCTION

In this action under 42 U.S.C. § 1983, plaintiff Kareem Garrett, a Pennsylvania state prisoner, asserts that medical personnel, corrections officers, and other staff members at Berks County Prison and SCI-Frackville violated his constitutional rights in various incidents that occurred between late 2010 and 2011.*fn1

Presently before the Court are three motions to dismiss: one filed by medical personnel at Berks County Prison ("the Medical Defendants' Motion to Dismiss"), another filed by non-medical personnel at Berks County Prison ("the Berks County Motion to Dismiss"), and the third filed by Peter Damiter, a counselor at SCI-Frackville ("Damiter's Motion to Dismiss"). For the reasons set forth below, the Court grants Damiter's Motion to Dismiss. The Medical Defendants' Motion to Dismiss and the Berks County Motion to Dismiss are granted in part and denied in part.

II. BACKGROUND

Plaintiff, a state prisoner, was incarcerated at Berks County Prison pursuant to an agreement between that prison and the Pennsylvania Department of Corrections. He is now housed at SCI-Frackville. His claims arise from several distinct events, the relevant facts of which are described in conjunction with each claim.

III. LEGAL STANDARD

Rule 12(b)(6) of the Federal Rules of Civil Procedure provides that, in response to a pleading, a defense of "failure to state a claim upon which relief can be granted" may be raised by motion to dismiss. To survive a motion to dismiss, a civil plaintiff must allege facts that "'raise a right to relief above the speculative level.'" Victaulic Co. v. Tieman, 499 F.3d 227, 234 (3d Cir. 2007) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). A complaint must contain "sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 570). To satisfy the plausibility standard, a plaintiff's allegations must show that a defendant's liability is more than "a sheer possibility." Id. "Where a complaint pleads facts that are 'merely consistent with' a defendant's liability, it 'stops short of the line between possibility and plausibility of entitlement to relief.'" Id. (quoting Twombly, 550 U.S. at 557).

In Twombly, the Supreme Court used a "two-pronged approach," which it later formalized in Iqbal. Iqbal, 129 S. Ct. at 1950; Fowler v. UPMC Shadyside, 578 F.3d 203, 210-11 (3d Cir. 2009). Under this approach, a district court first identifies those factual allegations that constitute nothing more than "legal conclusions" or "naked assertions." Twombly, 550 U.S. at 555, 557. Such allegations are "not entitled to the assumption of truth" and must be disregarded. Iqbal, 129 S. Ct. at 1950. The court must then assess "the 'nub' of the plaintiff['s] complaint-the well-pleaded, nonconclusory factual allegation[s]"-to determine whether it states a plausible claim for relief. Id.

IV. DISCUSSION

A. Unsanitary Cell

Plaintiff alleges that, for ten days beginning on or about November 9, 2010, Corrections Officer Christopher Vollmer "forced" him to live in an unsanitary cell at Berks County Prison that contained "human feces and human urine." (Am. Compl. ¶ 1.) Vollmer and Sergeant Dwight Rescorla allegedly refused to give plaintiff cleaning supplies, and plaintiff asserts that when he asked to speak to a lieutenant about the issue, Vollmer responded with a racial epithet. (Id.)

"[A] prison official cannot be found liable under the Eighth Amendment for denying an inmate humane conditions of confinement unless the official knows of and disregards an excessive risk to inmate health or safety . . . ." Farmer v. Brennan, 511 U.S. 825, 837 (1994). "The plaintiff must allege a substantial risk of serious harm or must produce evidence of how the unsanitary condition jeopardized or potentially jeopardized his health or caused [his living area] to be unfit for habitation." Burgos v. Canino, 641 F. Supp. 2d 443, 459 (E.D. Pa. 2009).

Plaintiff has adequately alleged an excessive risk to his health and safety. If sufficiently severe, the presence of human waste can render a living area unfit for habitation. See, e.g., Solomon v. Nassau Cnty., 759 F. Supp. 2d 251, 258 (E.D.N.Y. 2011) ("Unsanitary conditions at a prison facility[,] such as . . . human waste[,] can present a risk sufficient for Section 1983 liability."). Defendants argue that in other cases, courts have held unsanitary cells not to violate the Eighth Amendment. However, those cases involved either shorter exposure to unsanitary conditions, see, ...


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