United States District Court, Western District of Pennsylvania
David S. Cercone District Judge
REPORT AND RECOMMENDATION
LISA PUPO LENIHAN CHIEF MAGISTRATE JUDGE
For the reasons stated herein, it is respectfully recommended that the Motion to Dismiss filed by the Nurse Defendants (ECF No. 47) be granted as to Count XVIII against Nurse Harr. It should be denied as to Count XIX against Nurse Kincaid.
It is further recommended that the County Defendants’ Motion to Dismiss (ECF No. 50) be granted as to Counts I and XV (access to courts); Count XVI (excessive force), Counts II and IV (failure to intervene); Counts V, X, XI, XIV (retaliation); Counts III and XVII (due process); Count XX (failure to train subordinates); Counts XXI and XXII (conspiracy); and Count XXIII (preclusion to exhaust administrative remedies). It is recommended that their motion be denied as to Counts VI, VIII, XII (excessive force); Counts VII, IX, XIII (failure to intervene); and Count XIX (deliberate indifference to physiological needs). The motion should be denied without prejudice as to Count XXIV (mental and emotional injury).
Defendant J. Williams should be dismissed without prejudice for Plaintiff’s failure to prosecute. Amendment of the Complaint as to the Counts where Plaintiff has failed to state claims would be futile and such relief should not be granted.
Plaintiff Melvin Knight (“Plaintiff”) is an inmate currently incarcerated at the State Correctional Institution at Greene. He initiated this pro se prisoner civil rights action on July 13, 2012, and his Second Amended Complaint (“Complaint”), which is now before the Court, was filed on June 5, 2013. (ECF No. 36.) In his Complaint, Plaintiff asserts violations of his First, Eighth and Fourteenth Amendment rights. His claims arise out of an incident that occurred while he was confined in the Westmoreland County Prison in Greensburg, Pennsylvania in February 2012. Defendants include: John R. Walton (Warden); Steven Cmar (Deputy Warden); Jennifer Harr (Nurse); Sandra Kincaid (Nurse); and the following prison guards, Floyd Murphy, Benard Funk, Jr., Karl D. Ledbetter, Joshua A. Kudlik, Robert Carty, Ronald J. Burkhart, Donald Rairigh, Robert Wright, Brad V. Tomasello, George Lowther, J. Williams, and J. Keenan. Nurses Harr and Kincaid (“Nurse Defendants”) filed a Motion to Dismiss on August 9, 2013. (ECF No. 47). The remaining Defendants (“County Defendants”) filed a Motion to Dismiss on August 19, 2013. (ECF No. 50.) Plaintiff filed responses in opposition to both Motions (ECF Nos. 57, 61), and the County Defendants filed a reply to Plaintiff’s opposition (ECF No. 65). The Motions are now ripe for review.
The following is a summary of the allegations in Plaintiff’s Complaint. Counts I-IV, XIV, XV, XVII of Plaintiff’s Complaint concern a cell search that occurred on February 10, 2012. Plaintiff alleges that Defendant Tomasello ordered the cell search in retaliation for an incident that involved Plaintiff requesting a grievance form so that he could complain about the conditions of his unit and about an assault by Tomasello that occurred a week earlier. (Count XIV-retaliation.) Plaintiff alleges that during the cell search on February 10, 2012, Defendants Ledbetter and Funk destroyed his legal and personal property (Counts I-access to court, III-due process) and that Defendants Murphy, Kudlik and Carty failed to intervene to stop the destruction (Counts II-failure to intervene, IV-failure to intervene). He claims that Defendant Tomasello is liable for the destruction of his property because he ordered the cell search that resulted in its destruction and that he was denied due process because he was not provided with a pre or post-deprivation hearing. (Counts XV-access to court, XVII-due process.)
In Counts V-X Plaintiff alleges that, in retaliation for complaining about the destruction of his property, Defendants Murphy and Kudlik lifted him up in the air, carried him into his cell and slammed him face-first into the metal frame of his bunk-bed. (Counts V-retaliation, VI-excessive force.) Plaintiff alleges further retaliation by Defendant Murphy when he grabbed the back of his head, slammed it against the wall and on the metal frame numerous times, and twisted and turned his wrists while he was handcuffed. (Counts VIII-excessive force, X-retaliation.) He claims that Defendants Ledbetter, Funk, Carty and Burkhart failed to intervene in Murphy and Kudlik’s use of excessive force (Count VII-failure to intervene) and that they, including Defendants Kudlik, Wright and Rairigh, also failed to intervene in Murphy’s subsequent use of excessive force (Count IX-failure to intervene). He also claims that Defendant Tomasello used excessive force by ordering the cell search as a ploy so that Murphy could physically assault him. (Count XVI-excessive force.)
In Count XI, Plaintiff alleges that after the assault he was strapped to a restraint chair, taken to the gym and left there for more than seven hours without water, exercise or use of the bathroom and that this was in retaliation, by Defendants Murphy, Kudlik, Ledbetter, Carty, Burkhart, Wright and Rairigh, for him complaining about Murphy’s “assault” to Nurses Harr and Kincaid when they were treating his injuries. (Count XI-retaliation.) Interestingly, he also alleges that the guards would not let the Nurses assess or treat him while he was in the restraint chair but also alleges that the Nurses, and Defendants Williams and Keenan, were deliberately indifferent to his medical and physiological needs when he was strapped to the chair. (Counts XVIII-deliberate indifference, XIX-deliberate indifference.) He claims that Defendants Murphy, Kudlik, Ledbetter, Carty, Burkhart, Wright and Rairigh used excessive force by pulling the straps on the restraint chair too tight, which hurt his right wrist that had already been injured by Murphy. (Count XII-excessive force.) He further claims that they all failed to intervene in each other’s use of excessive force. (Count XIII-failure to intervene.)
Plaintiff alleges that Defendants Walton, Cmar, Tomasello, Lowther Ledbetter, Murphy and Keenan all failed to properly train their respective subordinates and that proper training would have prevented the physical assaults and the failure to intervene in the assaults. (Count XX-failure to train.)
He further alleges that Defendants Walton, Cmar, Murphy, Funk, Burkart, Wright, Rairigh, Tomasello, Lowther, Ledbetter and Carty all engaged in a conspiracy to deprive him of his constitutional right to access the court, to due process, and to be free from cruel and unusual punishment. (Count XXI-conspiracy.) Additionally, he alleges that Defendants Kincaid, Williams and Keenan engaged in a conspiracy by documenting that he was in the restraint chair for only four hours when it was really seven hours. (Count XXII-conspiracy.)
Finally, he alleges that Defendants Walton and Cmar prohibited him from exhausting his administrative remedies by refusing to provide him with a prison grievance form after he filed a written request for one. (Count XXIII-preclusion from exhausting administrating remedies.) He states that all Defendants caused him mental and emotional injury. (Count XXIV-mental and emotional injury.)
B. Standard of Review
Defendants have filed Motions to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). In considering a Federal Rule of Civil Procedure 12(b)(6) motion to dismiss for failure to state a claim, Federal Courts require notice pleading, as opposed to the heightened standard of fact pleading. Fed.R.Civ.P. 8(a)(2) requires only “‘a short and plain statement of the claim showing that the pleader is entitled to relief, ’ in order to ‘give the defendant fair notice of what the . . . claim is and the grounds on which it rests.’” Bell Atlantic Corp. v. Twombly, 550 U.S. 554, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).
Building upon the landmark United States Supreme Court decisions in Twombly and Ashcroft v. Iqbal, 556 U.S. 662 (2009), the United States Court of Appeals for the Third Circuit explained that a District Court must undertake the following three steps to determine the sufficiency of a complaint:
First, the court must “tak[e] note of the elements a plaintiff must plead to state a claim.” Second, the court should identify allegations that, “because they are no more than conclusions, are not entitled to the assumption of truth.” Third, “whe[n] there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement for relief.” This means that our inquiry is normally broken into three parts: (1) identifying the elements of the claim, (2) reviewing the Complaint to strike conclusory allegations, and then (3) looking at the well-pleaded components of the Complaint and evaluating whether all of the elements identified in part one of the inquiry are sufficiently alleged.
Malleus v. George, 641 F.3d 560, 563 (3d Cir. 2011) (quoting Iqbal, 556 U.S. at 675, 679).
The third step of the sequential evaluation requires this Court to consider the specific nature of the claims presented and to determine whether the facts pled to substantiate the claims are sufficient to show a “plausible claim for relief.” Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009). “While legal conclusions can provide the framework of a Complaint, they must be supported by factual allegations.” Id. at 210-11; see also Malleus, 641 F.3d at 560.
This Court may not dismiss a Complaint merely because it appears unlikely or improbable that Plaintiff can prove the facts alleged or will ultimately prevail on the merits. Twombly, 550 U.S. at 563 n.8. Instead, this Court must ask whether the facts alleged raise a reasonable expectation that discovery will reveal evidence of the necessary elements. Id. at 556. Generally speaking, a Complaint that provides adequate facts to establish “how, when, and where” will survive a Motion to Dismiss. Fowler, 578 F.3d at 212; see also Guirguis v. Movers Specialty Servs., Inc., 346 F. App’x. 774, 776 (3d Cir. 2009). In short, a Motion to Dismiss should not be granted if a party alleges facts, which could, if established at trial, entitle him/her to relief. Twombly, 550 U.S. at 563 n.8.
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).
Although not expressly stated in the Complaint, it appears that Plaintiff was a pre-trial detainee at the Westmoreland County Prison during the time the alleged events occurred in February 2012. According to public records, Plaintiff was not sentenced until August 31, 2012. Commonwealth v. ...