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Livingston v. Appel

United States District Court, E.D. Pennsylvania

December 5, 2014

JOHN DOE APPEL, et al., Defendant.


MICHAEL M. BAYLSON, District Judge.

I. Introduction

In a pro se complaint, Plaintiff Andre Livingston, a state prisoner, brings Eighth Amendment claims for excessive force and failure to provide adequate medical treatment for the resulting injuries against Defendants Warden Julio M. Algarin, ("Warden Algarin"), Lieutenant Edward Appel ("Lt. Appel"), Correctional Medical Care, Inc. ("CMC"), and unidentified John Doe guards of the Montgomery County Correctional Facility ("MCCF"). CMC, a private company that provides medical care to prisoners at MCCF, has moved to dismiss for failure to state a claim. ECF 7, at 2. Warden Algarin and Lt. Appel have moved to dismiss failure to state a claim or, in the alternative, for summary judgment for failure to exhaust administrative remedies. ECF 8.

II. Facts and Procedural History

On July 15, 2009, Livingston had been sentenced in a Pennsylvania Common Pleas court and was awaiting transfer to SCI-Graterford ("Graterford") from MCCF, where he had spent his pretrial detention. ECF 3, at 4-5; ECF 8, at 2 n.2.[1] Livingston alleges that Lt. Appel along with unidentified John Doe guards handcuffed him near the MCCF gymnasium and "repeatedly... punched [his] face and head." ECF 3, at 4. Lt. Appel and the other guards then took Livingston to a nearby office, where Lt. Appel allegedly "spitted [sic] in [Livingston's] hair and on [his] face" and "took turns hitting" Livingston with the John Does. Id. After the assault, Livingston was sent to MCCF's medical department, which is operated by CMC. Id. ; ECF 7, at 2. His injuries included a "swollen left eye, " "right temple area, " and jaw, a "busted lip, " four "cracked teeth, " and "discoloration to the left and right sides of [his] face." ECF 3, at 5. Nevertheless, Livingston alleges he did not receive any treatment "due to who the incident occurred with." Id. at 4. He also alleges that he asked to go to an outside hospital for his injuries but this request was refused. Id.

The next day, Livingston was transferred to Graterford, which allegedly "almost denied" his entry to the institution because of his physical condition. Id. at 5. In the period immediately after his transfer, Livingston alleges that he had "limited access to paper and the law library." Id. Livingston claims he was able to send a handwritten letter about the incident to Warden Algarin on August 14, 2009, but received no response until September 20, 2010. Id. at 3, 5.

Livingston initiated this suit pro se on May 2, 2011. CMC and Warden Algarin and Lt. Appel moved separately to dismiss on July 1, 2011. ECF 7, ECF 8. After the Court ordered Livingston to respond, Livingston requested appointed counsel. ECF 9, ECF 11. The Court referred the case to the Prisoner Civil Right Panel and stayed proceedings pending appointment of an attorney. ECF 14. After more than 18 months during which no attorney accepted Livingston's case but Livingston did not seek to proceed pro se, [2] the Court lifted the stay on August 5, 2014 and ordered him to proceed pro se if he wished to pursue his case and to respond to Defendants' Motions to Dismiss. ECF 22, ECF 23. Livingston now proceeds pro se .[3]

III. Legal Standard

When deciding a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), a court must "accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under a reasonable reading of the complaint, the plaintiff may be entitled to relief." Phillips v. Cnty. of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008) (internal quotation marks omitted). To survive a 12(b)(6) motion, the complaint's "factual allegations must be enough to raise a right to relief above the speculative level." Id. at 234. When a complaint contains well pleaded factual allegations, "a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief." Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009) (reaffirming rationale set forth in Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007)). However, a court is "not bound to accept as true a legal conclusion couched as a factual allegation." Id. at 678 (internal quotation marks omitted) (citations omitted). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements do not suffice." Id.

IV. Analysis

A. Claims Against Warden Algarin

Livingston alleges that he "reported the incident" to Warden Algarin by letter after the fact, and that his claims are "properly presented... due to the fact that [Warden Algarin] oversees the actions of staff" and "is the superintend[ent] who permits these individuals to commit such h[ei]nous acts." ECF 3, at 5; ECF 26, at 2. Livingston does not claim that Warden Algarin had personal knowledge of or directed the guards' or medical department's actions, and he does not refer to any MCCF policy or custom that posed an unreasonable risk of constitutional violations.

"Government officials may not be held liable for the unconstitutional conduct of their subordinates under a theory of respondeat superior ." Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009). A government official in a supervisory role will be liable for subordinates' conduct only where he or she 1) directly participated in, personally directed, or had "actual knowledge and acquiescence" in subordinates' actions; or 2) demonstrated "deliberate indifference to known deficiencies in a government policy or procedure" that created "an environment in which there is an unreasonable risk that a constitutional injury will occur." Barkes v. First Corr. Med., Inc., 766 F.3d 307, 320 (3d Cir. 2014); McKenna v. City of Phila., 582 F.3d 447, 460 (3d Cir. 2009) (citing Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir.1988)). ...

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