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Gerber v. Campbell

United States District Court, M.D. Pennsylvania

May 21, 2015

RICHARD GERBER Plaintiff
v.
WARDEN WILLIAM CAMPBELL, et al., Defendants

REPORT AND RECOMMENDATION

SUSAN E. SCHWAB, Magistrate Judge.

I. Introduction.

The plaintiff, Richard Gerber, was committed to the Columbia County Prison as a technical parole violator. He claims that, during his short stay there, the defendants violated his constitutional rights. Two of the three defendants filed a motion to dismiss Gerber's amended complaint. For the reasons that follow, we recommend that the motion to dismiss be granted in part and denied in part. More specifically, we recommend that the court dismiss all claims against the two moving defendants with the exception of a single retaliation claim.

II. Background and Procedural History.

Gerber began this case by filing a complaint and an application for leave to proceed in forma pauperis. We granted Gerber leave to proceed in forma pauperis, and after screening the complaint, we concluded that two of the seven named defendants were entitled to Eleventh Amendment immunity and that the complaint failed to state a claim upon which relief may be granted against the other five defendants. We granted Gerber leave to file an amended complaint.

Gerber then filed an amended complaint naming three defendants: (1) William Campbell, the Warden of the Columbia County Prison; (2) Corrections Officer Burd; and (3) a first shift nurse, who Gerber could not identify by name. Gerber alleges that, in November of 2013, he was recommitted to the Pennsylvania Department of Corrections (DOC) as a technical parole violator. In early January of 2014, the Pennsylvania Board of Probation and Parole (Board) decided to recommit Gerber as a technical parole violator to a state correctional institution or a county jail to serve six months pursuant to Act 122 of 2012. The Board's decision stated that, on May 12, 2014, Gerber will be reparoled automatically without further Board action provided that he does not, among other things, commit a disciplinary infraction involving assaultive behavior. Doc. 7-1 at 1.

Thereafter, on February 6, 2014, Gerber was transferred to the Columbia County Prison to serve his parole-violation term. According to Gerber, upon his arrival at the Columbia County Prison, he discovered that the conditions of confinement there were inferior to those provided by the DOC at state institutions. Gerber alleges that, during his orientation, he voiced a multitude of concerns in the presence of Warden Campell, who told Gerber that he was stuck at the Columbia County Prison until his release and that, if he were removed from the prison, his parole date potentially could be rescinded. That same evening, Gerber prepared various grievances concerning his conditions of confinement at the Columbia County Prison, and he submitted those grievances the following morning. Gerber was then transferred from a dormitory block to D Block. Gerber continued to submit grievances, and he requested a Section 1983 complaint form, which was never provided.

Gerber alleges that, on February 10, 2014, while he was exercising on the Block, another inmate-Harris-approached him and a verbal confrontation ensued. According to Gerber, Harris and two other inmates then assaulted him by hitting and kicking him in the head and face. Gerber alleges that he did not defend himself for fear of incurring a misconduct that could lead to the rescission of his reparole date. Gerber alleges that Officer Burd, who was the assigned officer on the Block at the time of the altercation, remained in a locked control booth until other officers responded.

After the attack, the first shift duty nurse examined Gerber, but the only medical care she provided was to an abrasion on Gerber's face. Gerber alleges that although he was experiencing excruciating pain in his head and his left elbow and the nurse determined that he likely suffered a concussion, she told him to just "shake it off." According to Gerber, she did not provide him with any pain medication or any ice for his obvious swelling. After the examination, Gerber was escorted to the Restricted Housing Unit, where, he alleges, his pain became so intense that he summoned the RHU officer, who told Gerber that he could do nothing for him.

According to Gerber, a few hours later he had several seizures. The evening duty nurse then ordered that an ambulance be summoned, and Gerber was taken by ambulance to Geisinger Hospital. There, medical professionals determined that Gerber had suffered a concussion and a fractured left elbow. Later that evening, Gerber was returned to the prison, where he received no further medical attention.

After Gerber returned from the hospital, he notified the shift lieutenant that he wanted to pursue criminal charges against his attackers, and the next morning, he met with Warden Campbell and reiterated his desire to contact the police and pursue criminal charges. According to Gerber, Campbell denied his request to contact the police and told him that he was not attacked, but rather he was involved in a fight. Gerber alleges that Campbell, knowing that Gerber's reparole date would more than likely be rescinded, also told him that he was being removed from the Columbia County Prison and returned to the DOC. Warden Campbell allegedly stated that the catalyst for the removal was the fact that Gerber liked to file grievances.

Gerber then contacted his wife, who arranged a telephone call between him and the Bloomsburg Police Department, and Patrolman Golla came to the prison within an hour after that phone call. Discouraged with the direction of Golla's interview of him, Gerber abruptly ended the interview.

An hour later, Gerber alleges, he received a misconduct, purportedly prepared by Officer Burd, charging him with nine different institutional infractions. The incident report, which Gerber attached to his amended complaint as an exhibit, includes the following statement by Officer Burd:

On the above date and time, this officer overheard inmates Harris and Gerber arguing. At this time, this officer overheard Gerber shout "Nigger" at inmate Harris. Inmate Harris then swung at inmate Gerber and a fight ensued. This officer exited the control booth and called for assistance. This officer ordered all inmates to lock down and ordered inmates Gerber and Harris to break it up. Both inmates stopped fighting but inmate Gerber continued with his racists comments by stating, "It's your guys' fault for putting me here with monkeys." Available rovers responded and Unit D-South was locked down. Inmate Gerber and Harris were removed to Unit E without incident.
Note-After review of the cameras, inmates Miller and Ross are clearly shown engaging in the altercation. Both inmates were then moved to Unit E without incident. Doc. 7-1 at 8. Gerber alleges that none of the charges against him were supported by the facts provided in Burd's report. According to Gerber, the attack on him was captured by video surveillance, which will substantiate his claims.

Less than 24 hours after Gerber received the misconduct and without receiving a misconduct hearing, he was transferred from the Columbia County Prison back to the DOC. Back in DOC custody, Gerber was informed that as a result of being removed from the Columbia County Prison and receiving a misconduct, his case was being forwarded to the Board for further review.

Gerber then submitted a grievance about the misconduct to Warden Campbell, who denied the grievance, stating among other things, that Gerber was found guilty of two charges-racial slurs and fighting-by the Disciplinary Committee based on Officer Burd's written statement and a review of the videotape. Doc. 7-1 at 12. But because of "several procedural errors made by staff at Columbia County Prison, " Warden Campbell granted Gerber's subsequent appeal and expunged the misconduct. Doc. 7-1 at 17. According to Gerber, although Campbell expunged the misconduct, the damage had already been done as the Board rescinded[1] his automatic reparole date as a result of the misconduct. Gerber alleges in his amended complaint that his status with the Board remains uncertain as he will not see the Board until the next available docket.

Patrolman Golla eventually charged Inmate Harris with criminal assault, which, Gerber contends, negates the prison officials' interpretation of the events and supports his claim of being attacked. According to Gerber, the only two charges that potentially could have resulted in the rescission of his automatic reparole date were the assault and fighting charges, which charges are negated by Patrolman Golla's charge against Inmate Harris.

Gerber claims that Warden Campbell and the first shift duty nurse acted with deliberate indifference to his medical needs after the attack in violation of the Eighth Amendment. He also claims that Warden Campbell and Officer Burd fabricated facts to have him removed from the Columbia County Prison in violation of the Eighth Amendment. Further, he claims that Warden Campbell retaliated against him for filing grievances and for contacting the Bloomsburg Police Department in violation of the First and Eighth Amendments. Finally, Gerber claims that Warden Campbell denied him due process and violated the Eighth Amendment by not providing him with a misconduct hearing and having him removed from the prison without a hearing knowing that his reparole date would be rescinded.

III. Motion to Dismiss and Pleading Standards.

In accordance with Fed.R.Civ.P. 12(b)(6), the court may dismiss a complaint for "failure to state a claim upon which relief can be granted." When reviewing a motion to dismiss, "[w]e must accept all factual allegations in the complaint as true, construe the complaint in the light favorable to the plaintiff, and ultimately determine whether plaintiff may be entitled to relief under any reasonable reading of the complaint." Mayer v. Belichick, 605 F.3d 223, 229 (3d Cir. 2010). In making that determination, we "consider only the complaint, exhibits attached to the complaint, matters of public record, as well as undisputedly authentic documents if the [plaintiff's] claims are based upon these documents." Id. at 230. "A Rule 12(b)(6) motion tests the sufficiency of the complaint against the pleading requirements of Rule 8(a)." I.H. ex rel. D.S. v. Cumberland Valley Sch. Dist., 842 F.Supp.2d 762, 769-70 (M.D. Pa. 2012). "Under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain a short and plain statement of the claim showing that the pleader is entitled to relief.'" Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009). The statement required by Rule 8(a)(2) must give the defendant fair notice of what the plaintiff's claim is and of the grounds upon which it rests. Erickson v. Pardus, 551 U.S. 89, 93 (2007). Detailed factual allegations are not required, but more is required than labels, ...


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