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Shanea Leigh Climo v. Ramon C. Rustin; Charles L.

August 31, 2012

SHANEA LEIGH CLIMO, PLAINTIFF,
v.
RAMON C. RUSTIN; CHARLES L. WALKER; MARGUERITE S. BONENBERGER; JEREMY W. PUGH; JOHN DOE AND COUNTY OF ECF NOS. 11, 20 ALLEGHENY, DEFENDANTS.



The opinion of the court was delivered by: Magistrate Judge Maureen P. Kelly

OPINION

KELLY, Magistrate Judge

Plaintiff, Shanea Leigh Climo ("Climo"), has brought this civil rights action against Defendants the County of Allegheny ("the County"), Ramon C. Rustin ("Rustin"), the Warden of the Allegheny County Jail ("ACJ"), and Corrections Officers Charles L. Walker ("Walker"), Marguerite S. Bonenberger ("Bonenberger"), Jeremy W. Pugh ("Pugh"), and John Doe ("Doe") (collectively, "Defendants"), alleging that Defendants violated her rights under the Eighth and Fourteenth Amendments to the United States Constitution while she was incarcerated at the ACJ.

Presently before the Court is a Motion to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(6) filed by the County and Rustin [ECF No. 11], and a Motion to Dismiss filed by Bonenberger and Pugh [ECF No. 20]. For the reasons that follow, both Motions will be granted in part and denied in part.

I. FACTUAL AND PROCEDURAL BACKGROUND

According to the Complaint, Climo was sentenced to serve an 111/2 to 23 month sentence by Judge Randall Todd of the Court of Common Pleas of Allegheny County, Pennsylvania, on February 18, 2009, and was subsequently incarcerated at the ACJ. ECF No. 1, ¶ 37. Climo was assigned to POD 5MD where the female inmates are housed. Id. at ¶¶ 38-39.

On December 27, 2009, Climo was called into the gymnasium by Defendant Walker, who was working the 3:00 p.m. to 11:00 p.m. shift on Climo's POD. Id. at ¶ 40. When Climo arrived at the gymnasium, Walker apparently made a comment to Climo about "having her all to himself," and forcibly grabbed her hand and placed it on his genitals over his clothing. Climo immediately said "no," pulled her hand away, and went back to her POD. Id.

Approximately two hours later, Walker asked Climo to come to the gymnasium a second time. Upon arriving, Walker again forcibly grabbed Climo's right hand and placed it on his genitals over his clothing, and began to forcibly kiss her on her mouth. Climo again removed her hand, told Walker "no," and ran back to her POD. Id. at ¶ 41.

At approximately 8:00 p.m. on that same date, Walker approached Climo while she was preparing a cup of tea in the nurse's station. Walker blocked the doorway with his body thereby preventing Climo from leaving the room. Id. at ¶ 43. Walker then forcibly grabbed Climo's right hand and placed it on his genitals over his clothing and then grabbed her breasts with his right hand. As Climo pulled her hand away from Walker's genitals, he began kissing her on her mouth and forcibly placed his right hand inside Climo's pants and underwear inserting his fingers inside her vaginal cavity. Id. at ¶ 46. Walker then removed his hand from inside Climo's pants and unzipped his own pants exposing his penis. Walker then grabbed Climo's right hand and placed it on his penis until he ejaculated on her. Id. at ¶ 47. Walker then placed his hand on Climo's shoulder, forced her down in a kneeling position and inserted his penis in her mouth. Walker kept his hands on Climo's shoulders and his penis in her mouth until he ejaculated a second time. Id. at ¶ 48. After he allowed Climo to get up and leave Walker threatened Climo not to report the incident to anyone. Id. at ¶ 49.

Climo, however, did report the incident to the Allegheny County Police and, as a result, Walker was terminated as a Corrections Officer by the ACJ on or about December 29, 2009. Id. at ¶ 50. A Criminal Complaint was filed against Walker on or about January 7, 2010, charging him with Involuntary Deviate Sexual Intercourse, 18 Pa. C.S.A. § 3123(a)(1); Institutional Sexual Assault, 18 Pa. C.S.A § 3124.2; Indecent Assault, 18 Pa. C.S.A. § 3126(a)(2); and, Recklessly Endangering Another Person, 18 Pa. C.S.A. § 2705(a). Id. at ¶ 51. Walker pled guilty to Institutional Sexual Assault, a Third Degree Felony, on November 1, 2010, and on January 20, 2011, Walker was sentenced to nine (9) months of Restrictive Intermediate Punishment or House Arrest with electronic monitoring and placed on seven (7) years of probation. Walker was also found to be a Sexual Offender and subject to the reporting requirements of Megan's Law, pursuant to 42 Pa. C.S.A. § 9795.1, for a ten (10) year period. Id. at ¶¶ 66-67.

Fearing that other corrections officers would retaliate against Climo as a result of Walker's termination and the filing of criminal charges against him, Climo was moved to the Washington County Jail on or about December 30, 2009. Id. at ¶¶ 52-53. On March 15, 2010, however, Climo was transferred back to the ACJ so she could testify at Walker's Preliminary Hearing, which was scheduled for March 17, 2010. Id. at ¶ 56. According to the Complaint, at approximately 9:30 p.m., while in the Intake Unit of the ACJ, Climo was physically assaulted by Defendants Pugh, Bonenberger and Doe, who were working the 3:00 p.m. to 11:00 p.m. shift. Id. at ¶ 57. Climo alleges that just prior to the assault, Bonenberger verbally accosted her and then grabbed her by the neck and hair from behind and slammed Climo's face and head repeatedly into a block wall. Id. at ¶¶ 58-59. After impacting with the wall, Bonenberger drove Climo to the ground, where she continued to strike Climo's head against the floor. Climo also alleges that, while on the ground, Pugh placed a spit mask over her head, after which he, Bonenberger and Doe struck and kicked Climo numerous times as she lay handcuffed and blinded on the floor. Id. at ¶¶ 60-61. As a result of the physical assault, Climo suffered a concussion and injuries to her back, neck and left wrist, most of which she claims were not treated by the ACJ staff or medical personnel. Id. at ¶ 64. On or about March 30, 2010, Climo was transferred back to the Washington County Jail for her own protection due to both the sexual assault committed in December 2009, and the above-described retaliatory actions by Bonenberger, Pugh and Doe. Id. at ¶ 65.

Climo, who is represented by counsel, filed the instant Complaint on October 20, 2011, wherein she has brought claims against Defendant Walker for sexual assault and excessive force in violation of the Eighth and Fourteenth Amendments to the United States Constitution (Count I), and state law claims for Involuntary Deviate Sexual Intercourse, Aggravated Indecent Assault, Institutional Sexual Assault and Unlawful Restraint (Count II). Climo has also brought claims against Defendants Pugh, Bonenberger and Doe for assault and excessive force in violation of the Eighth and Fourteenth Amendments (Count III), for conspiracy in violation of the Eighth and Fourteenth Amendments (Count IV), and state law claims pursuant to 18 Pa. C.S.A. §§ 2701, 2702, 4952 and 4953, for Assault/Battery, and Intimidation/Retaliation against a Witness (Count V). Claims for Failure to Train, Implement Policies and Supervise in violation of the Eighth and Fourteenth Amendments have also been brought against Defendants Rustin (Count VI), and the County (Count VII).

A Motion to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(6) was filed by the County and Defendant Rustin on December 19, 2011, and on March 6, 2011, Defendants Bonenberger and Pugh filed a similar motion arguing that Climo has failed to state a claim. Climo has responded to both Motions which are now ripe for review.

II. STANDARD OF REVIEW

In Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), the United States Supreme Court held that a complaint is properly dismissed under Fed. R. Civ. P. 12(b)(6) where it does not allege "enough facts to state a claim to relief that is plausible on its face." Id. at 570. In assessing the sufficiency of the complaint, the Court must accept as true all allegations in the complaint and all reasonable factual inferences must be viewed in the light most favorable to the plaintiff. Odd v. Malone, 538 F.3d 202, 205 (3d Cir. 2008). 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 Public Employees' Retirement System v. The Chubb Corp., 394 F.3d 126, 143 (3d Cir. 2004), citing Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997). Nor must the Court accept legal conclusions set forth as factual allegations; rather, "[f]actual allegations must be enough to raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 550 U.S. at 555, citing Papasan v. Allain, 478 U.S. 265, 286 (1986).

See Phillips v. County of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008) (finding that, under Twombly, "labels, conclusions, and a formulaic recitation of the elements of a cause of action" do not suffice but, rather, the complaint "must allege facts suggestive of [the proscribed] conduct" and that are sufficient "to raise a reasonable expectation that discovery will reveal evidence of the necessary element[s] of his claim").

III. DISCUSSION

Climo has brought her claims pursuant to 42 U.S.C. § 1983, which provides that:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress

42 U.S.C. § 1983. "Section 1983 provides remedies for deprivations of rights established in the Constitution or federal laws. It does not, by its own terms, create substantive rights." Kaucher v. Cnty. of Bucks, 455 F.3d 418, 423 (3d Cir. 2006), citing Baker v. McCollan, 443 U.S. 137, 145 n. 3 (1979) (footnote omitted) . Thus, in order to state a claim for relief under Section 1983, the plaintiff must allege facts from which it could be inferred that "the defendant, acting under color of state law, deprived him or her of a right secured by the Constitution or the laws of the United States." Id. at 423.

A. Motion to Dismiss filed by Defendants Rustin and the County

1. Fourteenth Amendment Claims

At Counts VI and VII of the Complaint, Climo faults Rustin and the County for failing to train, monitor or discipline corrections officers, failing to take adequate measures to protect inmates from sexual assault and retaliation, and for failure to provide Climo and others with adequate medical care. See ECF No. 1, ¶¶ 111-153. Climo also alleges that Rustin and the County had "a custom, policy and/or practice of failing to protect the care, custody and welfare of inmates incarcerated at the ACJ." ECF No. 1, ¶¶ 122, 143. These allegations are said to have violated Climo's rights under the Eighth and Fourteenth Amendments to the Constitution. The ...


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