United States District Court, W.D. Pennsylvania
THURMAN MEARIN, Plaintiff, Pro se, Waynesburg, PA.
NATHAN RILEY, Plaintiff, Pro se, Waynesburg, PA.
For CARLA SWARTZ, Unit Manager, MAJOR L. WINFIELD, Major of Unit Management, LOUIS FOLINO, Superintendent, DORINA VARNER, Chief Grievance Officer, L-5 UNIT MANAGER PAUL PALYA, Unit Manager, LIEUTENDANT ROBERT KENNEDY, RHU/Capital Case Lieutenant; sued in defendants individual and official capacties, [FIRST NAME UNKNOWN] TOMSON, C.O. 1, [FIRST NAME UNKNOWN] WILLIAMS, C.O.1, LIEUTENANT D. P. MEIGHEN, C.O.3, [FIRST NAME UNKNOWN] GREENWALL, C.O.1, [FIRST NAME UNKNOWN] RENERA, C.O.2, SGT. [FIRST NAME UNKNOWN] FEARIA, C.O.2, [FIRST NAME UNKNOWN] OVER, C.O.1, Defendants: Mary Lynch Friedline, LEAD ATTORNEY, Office of Attorney General, Fifth Floor, Manor Complex, Pittsburgh, PA.
MAUREEN P. KELLY, UNITED STATES MAGISTRATE JUDGE. Judge Nora Barry Fischer.
REPORT AND RECOMMENDATION
Plaintiffs Thurman Mearin (" Mearin" ) and Nathan Riley (" Riley" ) (collectively, " Plaintiffs" ) are inmates in the custody of the Pennsylvania Department of Corrections (" DOC" ), and are currently incarcerated at the State Correctional Institution at Greene (" SCI Greene" ). Plaintiffs bring this pro se civil rights action against Unit Manager Carla Swartz (" Swartz" ), Major of Unit Manager Major L. Winfield (" Winfield" ), Superintendent Louis Folino (" Folino" ), Chief Grievance Officer Dorina
Varner (" Varner" ), L-5 Unit Manager Paula Palya (" Palya" ), Lieutenant Robert Kennedy (" Kennedy" ), C.O.1 Tomson (" Tomson" ), C.O.1Williams (" Williams" ), Lieutenant D.P. Meighen (" Meighen" ), C.O.1 Greenwall (" Greenwall" ), C.O.2 Renera (" Renera" ), Sergeant Fearia (" Fearia" ), and C.O.1 Over (" Over" ) (collectively, " Defendants" ), alleging that Defendants have allowed them to be exposed to environmental tobacco smoke (" ETS" ) with deliberate indifference to their current and future health in violation of his rights provided by the Eighth Amendment to the United States Constitution.
Presently before the Court is a Motion to Dismiss Plaintiffs' Amended Complaint (" the Motion" ) submitted on behalf of Defendants. ECF No. 59. For the reasons that follow, it is respectfully recommended the Motion be granted in part and denied in part.
A. PROCEDURAL BACKGROUND
Plaintiffs initiated this action on May 19, 2011, by submitting a Complaint to the Clerk of Court without the requisite filing fee or motion seeking leave to proceed in forma pauperis. ECF No. 1. The filing fee, however, was paid May 24, 2011, and the Complaint was filed on that same date. ECF Nos. 3, 5. An Amended Complaint was filed by Plaintiffs on October 10, 2011, but struck by this Court on November 2, 2011, because only one of the two Plaintiffs had signed it. ECF Nos. 14, 17. Plaintiffs were nevertheless directed to submit a jointly signed Amended Complaint on or before November 28, 2011, which they failed to do. ECF No. 17. Although Plaintiffs subsequently sought to amend the same unsigned Amended Complaint on February 14, 2012, that effort was thwarted for the same reason and on March 2, 2012, this Court issued another order giving Plaintiffs until March 23, 2012, to file a Consolidated Amended Complaint bringing all of the claims asserted in the original complaint and any new claims they wished to pursue in a single document. ECF Nos. 36, 38.
Plaintiffs filed an Amended and Supplemental Complaint (" Amended Complaint" ) on March 26, 2012, which is now the operative complaint. ECF Nos. 39, 39-1. At Count I, Plaintiff Mearin has brought Eighth Amendment claims relative to his exposure to ETS against Defendants Swartz, Winfield, Folino, Palya, Tomson, Williams, Meighen, Greenwall, Renera, Fearia and Varner. ECF No. 39-1, ¶ ¶ 17-21, 29-31. Plaintiff Riley has brought the same claims against Defendants Swartz, Folino, Palya, Kennedy, Over, and Varner. ECF No. 39-1, ¶ ¶ 24-28, 32-33, 38-41. See Id. at ¶ ¶ 47-48. At Count II, Plaintiff Mearin brings a First Amendment retaliation claim against Defendants Swartz, Winfield, Folino and Varner; Riley asserts the same claim against Defendant Swartz. ECF No. 39-1, ¶ ¶ 22-23, 34-37. See Id. at ¶ ¶ 49-50. Although not brought as a separate cause of action, both Plaintiffs have alleged that Defendants Greenwall, Tomson, Williams, Meighen, Swartz, Winfield and Folino have violated their rights provided by the Eighth Amendment by instituting a " snitch policy," which requires them to inform on fellow inmates thereby placing them at risk of harm. ECF No. 39-1, ¶ ¶ 42-45.
Defendants filed the instant Motion on September 6, 2012, to which Plaintiffs responded on November 16, 2012. ECF Nos. 59, 63. As such the Motion is now ripe for review.
B. STANDARD OF REVIEW
In assessing the sufficiency of the complaint pursuant to a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the Court must accept as true all
material 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 bald assertions or inferences drawn by the plaintiff if they are unsupported by the facts 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. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). Rather, " [f]actual allegations must be enough to raise a right to relief above the speculative level." Id., citing
Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986). Indeed, the United States Supreme Court has 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, or where the factual content does not allow the court " to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). 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" ).
Plaintiff has brought his claims pursuant to 42 U.S.C. § 1983 (" Section 1983" ...