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Real v. Huber

United States District Court, Middle District of Pennsylvania

February 18, 2014

FERNANDO REAL, Plaintiff
v.
CO HUBER, et al., Defendants

Blewitt Magistrate Judge

REPORT AND RECOMMENDATION

THOMAS M. BLEWITT UNITED STATES MAGISTRATE JUDGE

I. Background.

On April 23, 2013, Plaintiff Fernando Real, an inmate at the State Correctional Institution at Graterford, Pennsylvania (“SCI-Graterford”), filed the instant civil rights action[1], pursuant to 42 U.S.C. § 1983. (Doc. 1). Plaintiff also indicates that he is seeking declaratory relief under 21 U.S.C. §2201 and §2202. Plaintiff raises claims of unlawful seizure and destruction of Plaintiff’s property, an Eighth Amendment conditions of confinement claim for exposure to substandard living conditions, First Amendment retaliation, Fourteenth Amendment Due Process, First Amendment denial of access to the courts, Eighth Amendment denial of medical treatment and a state law claim of intentional infliction of emotional distress. (Id.). Plaintiff also filed a Motion for leave to proceed in forma pauperis. (Doc. 4). On May 8, 2013, the Court granted Plaintiff’s Motion for leave to proceed in forma pauperis. (Doc. 7).

In his pleadings, Plaintiff names the following twenty (20) Defendants: CO Huber, Richard Southers, Michael Bell, John Horner, Lt. Gardner, Sgt. Cook, J.A. Stum, Tracey Williams, Dennis King, Bear, Christopher Chambers, Rodney Carberry, Nurse Mary, Teresa Law, William, McGinnis, Kristen Reisinger, Lieutenant Rhoades, Captain Euhanburaz, Sgt. Boring and Dorina Varner. (Doc. 1, pp. 2-4).

All Defendants are past and present employees of the Pennsylvania Department of Corrections (“PA-DOC”) at SCI-Camp Hill and the DOC’s Central Office. Defendant McGinnis is a Physician’s Assistant and is an employee of PHS/Corizon.

Plaintiff alleges that he was subjected to unhealthy conditions of confinement at SCI-Camp Hill in the Special Management Unit (“SMU”). Plaintiff complains of being subjected to strong odors from the toilets and unclean water. (Doc. 1, pp. 4-8). Plaintiff complained to staff and filed grievances for which he was ignored. Plaintiff states:

56. The acts or omissions of Defendants: Chambers, Southers, Varner, Williams, Stum, Bear, Cook and Carberry were committed without cautious regard or due care, and with such wanton and reckless disregard of the consequences or to show cautious indifference to the danger of harm and injury. The acts and omission of the Defendants constituted willful misconduct.
57. As a result Plaintiff is at risk of contracting serious medical problems in the future as a result of the acts and omissions of Defendants Chambers, Southers, Varner, Williams, Stum, Bear, Cook and Carberry, who knowingly exposed Plaintiff to substandard living conditions.

(Id., p. 8).

Plaintiff further asserts that he was denied medical care and retaliated against by SMU staff for filing grievances regarding the prison conditions. (Id., pp. 9-13). Plaintiff alleges that Defendant Reisinger did not give him a fair and impartial hearing on the misconduct charges. (Id., p. 13). Finally, Plaintiff alleges that Defendant Huber destroyed some of his legal property resulting in the loss of a legal case. (Id., pp. 14-18). In his Complaint, Plaintiff indicates that he exhausted all available administrative remedies.[2] (Id., p. 18).[3]

There are four outstanding motions which are ripe and we will be address in this Report and Recommendation. On July 12, 2013, the DOC Defendants filed a Motion to dismiss for failure to state a claim. (DOC. 14). On July 12, 2013, the DOC Defendants filed a brief in support of same. (Doc. 15). On August 5, 2013, Plaintiff filed a brief in opposition of the DOC Defendants Motion to dismiss. (Doc 23). On the same date, Plaintiff also filed “Plaintiff’s Brief In Support Of Motion In Opposition To Defendant’s Motion To Dismiss Plaintiff’s Complaint.” (Doc. 24).

On July 12, 2013, Plaintiff filed a Motion for preliminary injunction. (DOC. 16). On July 12. 2013, Plaintiff filed a brief in support of same. (Doc. 17). On July 18, 2013, Defendants filed a brief in opposition of Plaintiff’s Motion for preliminary injunction. (Doc. 22).

On July 15, 2013, Defendant McGinnis filed a Motion to dismiss for failure to state a claim. (DOC. 20). On July 15, 2013, Defendant McGinnis filed a brief in support of same. (Doc. 21). Plaintiff did not file a response to Defendant McGinnis’ Motion.[4] Plaintiff’s opposition to Defendants’ Motion is past due, thus, the Court will deem Defendants’ Motion as unopposed in accordance with Local Rule 7.6.

On September 19, 2013, Plaintiff filed a “Supplement Complaint.” (Doc. 25). On October 24, 2013, the DOC Defendants filed a Motion to dismiss the supplemental complaint. (DOC. 26). On October 24, 2013, the DOC Defendants filed a brief in support of same. (Doc. 27). Again, Plaintiff did not respond to Defendants’ Motion. Plaintiff’s opposition to Defendants’ Motion is past due, thus, the Court will deem Defendants’ Motion as unopposed in accordance with Local Rule 7.6.

II. Section 1983 Standard.

In a § 1983 civil rights action, the Plaintiff must prove the following two essential elements: (1) that the conduct complained of was committed by a person acting under color of state law; and (2) that the conduct complained of deprived the Plaintiff of rights, privileges or immunities secured by the law or the Constitution of the United States. Parratt v. Taylor, 451 U.S. 527 (1981); Kost v. Kozakiewicz, 1 F.3d 176, 184 (3d Cir. 1993); Beattie v. Dept. of Corrections SCI-Mahanoy, 2009 WL 533051, *3 (M.D. Pa.). Further, Section 1983 is not a source of substantive rights. Rather, it is a means to redress violations of federal law by state actors. Gonzaga Univ. v. Doe, 536 U.S. 273, 284-85 (2002).[5] See also Holocheck v. Luzerne County Head Start, Inc., 385 F.Supp.2d 491, 498-499 (M. D. Pa. 2005); Phillips v. Miller, 2010 WL 771793, *2 (M.D. Pa.). It is well established that personal liability under section 1983 cannot be imposed upon a state official based on a theory of respondeat superior. See, e.g., Rizzo v. Goode, 423 U.S. 362 (1976); Hampton v. Holmesburg Prison Officials, 1546 F.2d 1077, 1082 (3d Cir. 1976); Parratt, supra. It is also well settled in the Third Circuit that personal involvement of defendants in alleged constitutional deprivations is a requirement in a § 1983 case and that a complaint must allege such personal involvement. Id. Each named defendant must be shown, through the complaint’s allegations, to have been personally involved in the events or occurrences upon which Plaintiff’s claims are based. Id. As the Court stated in Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1998):

A defendant in a civil rights action must have personal involvement in the alleged wrongs . . . . [P]ersonal involvement can be shown through allegations of personal direction or of actual knowledge and acquiescence. Allegations of participation or actual knowledge and acquiescence, however, must be made with appropriate particularity. (Citations omitted).

See also Beattie v. Dept. of Corrections SCI-Mahanoy, 2009 WL 533051, *3(“a prerequisite for a viable civil rights claim is that a Defendant directed, or knew of and acquiesced in, the deprivation of a Plaintiff‘s constitutional rights.”) (citing Rode, supra.).

III. Motion to Dismiss Standard.

In Reisinger v. Luzerne County, 712 F.Supp.2d 332, 343-344 (M.D. Pa. 2010), the Court stated:

The Third Circuit Court of Appeals recently set out the appropriate standard applicable to a motion to dismiss in light of the United States Supreme Court's decisions Bell Atlantic Corp. v. Twombly, 550 U.S. 433 (2007), and Ashcroft v. Iqbal, ___ U.S. ___, 129 S.Ct. 1937 (2009). “[T]o survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true to ‘state a claim that relief is plausible on its face.’ “ Iqbal, 129 S.Ct. at 1949 (citing Twombly, 550 U.S. at 570). The Court emphasized that “only a complaint that states a plausible claim for relief survives a motion to dismiss.” Id. at 1950. Moreover, it continued, “[d]etermining whether a complaint states a plausible claim for relief will ... be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id. (citation omitted). McTernan v. City of York, 577 F.3d 521, 530 (3d Cir.2009). The Circuit Court discussed the effects of Twombly and Iqbal in detail and provided a road map for district courts presented with a motion to dismiss for failure to state a claim in a case filed just a week before McTernan, Fowler v. UPMC Shadyside, 578 F.3d 203 (3d Cir.2009).
[D]istrict courts should conduct a two-part analysis. First, the factual and legal elements of a claim should be separated. The District Court must accept all of the complaint's well-pleaded facts as true, but may disregard any legal conclusions. [ Iqbal, 129 S.Ct. at 1949.] Second, a District Court must then determine whether the facts alleged in the complaint are sufficient to show that the plaintiff has a “plausible claim for relief.” Id. at 1950. In other words, a complaint must do more than allege a plaintiff's entitlement to relief. A complaint has to “show” such an entitlement with its facts. See Philips [v. Co. of Allegheny], 515 F.3d [224, ] 234-35 [ (3d Cir.2008) ]. As the Supreme Court instructed in Iqbal, “[w]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not ‘show[n]’-‘that the pleader is entitled to relief.’ “ Iqbal, 129 S.Ct. at 1949. This “plausibility” determination will be “a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id. Fowler, 578 F.3d at 210-11.
The Circuit Court's guidance makes clear that legal conclusions are not entitled to the same deference as well-pled facts. In other words, “the court is ‘not bound to accept as true a legal conclusion couched as a factual allegation.’ “ Guirguis v. Movers Specialty Services, Inc., No. 09-1104, 2009 WL 3041992, at *2 (3d Cir. Sept. 24, 2009) (quoting Twombly, 550 U.S. at 555) (not precedential).

IV. Discussion.

As Plaintiff correctly indicates in his Complaint, the Court has jurisdiction over his §1983 civil rights action pursuant to 28 U.S.C. §1331 and §1343(a).

A. THE DOC DEFENDANTS’ MOTION TO DISMISS (DOC. 14).

1. Personal Involvement of Defendants Southers, Bell, Williams, Law, Horner, Rhoades, Eichenburg[6] and Varner.

Defendants assert that Plaintiff’s Complaint should be dismissed as against Southers, Bell, Williams, Law, Horner, Rhoades, Eichenburg and Varner because Plaintiff failed to establish the personal involvement of these Defendants as they all hold supervisory positions in the DOC. We agree. It is well established that personal liability in a civil rights action cannot be imposed upon an official based on a theory of respondeat superior. See, e.g., Rizzo v. Goode, 423 U.S. 362 (1976); Hampton v. Holmesburg Prison Officials, 1546 F.2d 1077, 1082 (3d Cir. 1976); Parratt, supra. It is also well settled in the Third Circuit that personal involvement of defendants in alleged constitutional deprivations is a requirement in a civil rights case and that a complaint must allege such personal involvement. Id. Each named defendant must be shown, through the complaint’s allegations, to have been personally involved in the events or occurrences upon which Plaintiff’s claims are based. Id.; Innis v. Wilson, 2009 WL 1608502, *2 (3d Cir. 2009); Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1998).

The Supreme Court in Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009), repeated the personal involvement necessary in a § 1983 action. In Innis v. Wilson, 2009, WL 1608502, *2 (3d Cir. 2009) the Court stated:

“To survive a motion to dismiss, 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, No. 07-1015, slip op. at 14 (May 18, 2009) [129 S.Ct. 1937 (2009)] (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
“Innis's allegation against Wilson also fail because Innis is attempting to establish liability based on supervisory liability. See Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir.1988) (liability cannot be predicated solely on the operation of respondeat superior, as a defendant must have personal involvement in a civil rights action). Innis does not allege that Wilson had personal knowledge of his injury and subsequently acted ...

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