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Richard A. Nesmith v. Beaver County Jail and Beth

August 7, 2012

RICHARD A. NESMITH,
PLAINTIFF,
v.
BEAVER COUNTY JAIL AND BETH, L.N.U., ECF NOS. 18, 27 DEFENDANTS.



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

MEMORANDUM ORDER

This case is before the Court on the Motions to Dismiss filed by Defendants Beaver County Jail (ECF No. 27) and Beth Harris (ECF No. 18). For the following reasons, the Motions will be granted and this case will be dismissed with prejudice as granting Plaintiff leave to amend would be futile.

I.Background and Procedural History

Plaintiff, Richard A. Nesmith ("Nesmith"), filed a Complaint on March 25, 2011 against Defendants Beaver County Jail ("BCJ") and Beth Harris ("Beth"), a Registered Nurse employed at BCJ, to enforce his rights under the Fourth, Sixth, Eighth, and Thirteenth Amendments to the Constitution of the United States pursuant to 42 U.S.C. § 1983. (ECF No. 3 at 1.) Nesmith filed additional Exhibits on May 12, 2011, part of which was labeled "Amendment to the Above Civil Action." (ECF No. 9 at 1.)

Beth filed a Motion to Dismiss and supporting Brief on March 7, 2012. (ECF No. 18, 19.) Nesmith filed a Response to Beth's Motion on March 15, 2012. (ECF No. 25.) BCJ filed a Motion to Dismiss and supporting Brief on April 23, 2012. (ECF No. 27, 28.) On May 25, 2012, Chief Magistrate Judge Lisa Pupo Lenihan ordered Nesmith to respond to or amend his Complaint in accordance with BCJ's Motion no later than June 15, 2012, however Nesmith did not comply with this Order and has not filed a response or amendment to this date.

Further, Nesmith's Response at ECF No. 25 includes additional claims not found in his original Complaint. Because Nesmith did not raise these claims in his Complaint or Amendment, but rather raised them in his Response, they will not be addressed. See, Hang On, Inc. v. City of Arlington, 65 F.3d 1248 (5th Cir. 1995); Gueson v. Feldman, No. 00-cv-1117, 2002 WL 32308678, at *4 (E.D. Pa. Aug. 22, 2002) ("A plaintiff may not raise new claims in response to a motion to dismiss.").

According to the Complaint, Nesmith was incarcerated at BCJ on January 26, 2011 when he was approached by Jennifer Monza ("Monza") to recover a DNA sample in order to pursue a furlough to attend his brother's funeral. (ECF No. 3 at 2.) After Nesmith refused the initial test, Carol Steele ("Steele") and a "white shirt officer" sought him out and explained that he had to give a DNA sample in order to go to his brother's service. (ECF No. 3 at 4.) Nesmith alleges that he voluntarily gave a DNA sample but was not granted furlough and thus did not attend the funeral service. (ECF No. 3 at 4.) Nesmith filed a grievance in response to being denied furlough and ultimately exhausted his administrative remedies. (ECF No. 3 at 3-4.)

Nesmith also alleges that Monza and Beth "had [him] moved to medical ISO" because he suffers from sleep apnea and uses a Bi-Pap Sleep Machine ("machine") for treatment. (ECF No. 3 at 5.) Nesmith further alleges that it was his understanding that he could have his personal machine after inspection by "RBC." (ECF No. 3 at 5.) Nesmith's machine was brought to BCJ and "held in medical from [December] 2010 to March 2011" for inspection. (ECF No. 3 at 5.)

Nesmith alleges that Beth stopped answering his medical requests, however Nesmith also alleges that Beth responded to his medical communications in a manner unsatisfactory to Nesmith. (ECF No. 3 at 5.) Specifically, Nesmith claims that Beth's responses "would come back with things like [the] Dr. will see [you] soon, or your (sic) on the.Dr. list." (ECF No. 3 at 5.) Nesmith further alleges that he suffers from three chronic medical conditions including sleep apnea, chronic pain, and a heart condition. (ECF No. 3 at 5.) Nesmith alleges that "medical staff.refuse[d] to address" these medical conditions and that a failure to treat his sleep apnea has resulted in pain "on [the] area of the stent that was put in." (ECF No. 3 at 5.) Nesmith includes medical request forms as Exhibits, which indicate that Nesmith acknowledged receipt of medication, doctor's evaluations, and an extra mattress as part of a treatment plan for his back pain and heart condition. (ECF No. 3-1 at 4, 5, and 13.)

In addition, Nesmith alleges that the food portions at BCJ are "so small that it's funny," and that other inmates have found maggots in their food. (ECF No. 3 at 6.) However, Nesmith does not allege that any grievances were filed or any personal knowledge of unsanitary food. (ECF No. 3 at 6.) Finally, Nesmith alleges that prices in the commissary are "crazy high" and that the "wardon's (sic) wife owns or runs the food store." (ECF No. 3 at 6.) Nesmith suggests that there is a conspiracy within BCJ to provide inadequate food to inmates so that they will spend money on overpriced commissary food that profits the warden's family. (ECF No. 3 at 6.)

In addition, Nesmith filed a separate Complaint against Beth and Southern Health Partners on March 31, 2011, for violations of his Fourth, Sixth, Eighth, and Thirteenth Amendment rights at civil action number 11-425. Nesmith's Complaint alleged that Beth and the medical staff were "just not responding to [his] medical needs," specifically his back pain, sleep apnea, and heart condition. (C.A. No. 11-425, ECF No. 3.) Judge Terrence McVerry issued an Order on February 9, 2012 granting Defendants' Motions to Dismiss in regard to this Complaint. (C.A. No. 11-425, ECF No. 23.) Nesmith filed a Motion for Reconsideration on February 27, 2012 that was denied on February 29, 2012. (C.A. No. 11-425, ECF Nos. 24 and 25.)

II.Standard of Review

When considering a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6), courts must accept all factual allegations in the complaint as true and read them in the light most favorable to the plaintiff. Angelastro v. Prudential-Bache Securities, Inc., 764 F.2d 939, 944 (3d Cir. 1985). A complaint must be dismissed pursuant to Rule 12(b)(6) if it does not allege "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). "Factual allegations must be enough to raise a right to relief above a speculative level." Id. at 555. The court 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)). Additionally, a civil rights claim "must contain specific allegations of fact which indicate a deprivation of constitutional rights; allegations which are nothing more than broad, simple and conclusory statements are insufficient to state a claim under § 1983." Alfaro Motors, Inc. v. Ward, 814 F.2d 883, 887 (2d Cir. 1987).

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. Gills, 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). When presented with a pro se complaint, the court should construe the complaint liberally and draw fair inferences from what is not alleged as well as from what is alleged. Dluhos v. Strasberg, 321 F.3d 365, 369 (3d Cir. 2003). In a section 1983 action, the court must "apply the applicable law, irrespective of whether the 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).

III.Discussion of Applicable Legal Authority and Analysis

A.Claims ...


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