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Twardzik v. Devero

United States District Court, E.D. Pennsylvania

June 15, 2015

OFFICER ELLIS DEVERO, et al., Defendants.



Plaintiff Jason Twardzik (“Twardzik”) sued Officer Ellis Devero (“Devero”), Officer Brandon Jackson (“Jackson”), and Dr. Malorie L. Budman Traub (“Dr. Traub”) (collectively “Defendants”) for alleged constitutional violations he suffered while a pretrial detainee at Norristown State Hospital (the “Hospital”). Defendants move to dismiss the complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). Defendants’ motion is granted in part and denied in part for the reasons that follow.


Twardzik alleges that on January 11, 2013, he attempted to enter his room at the Hospital when Officers Devero and Jackson blocked his passage through the doorway. (Compl. ¶¶ 11-12.) Devero and Jackson then pushed Twardzik into the doorway, grabbed him, lifted him off the ground, and “body-slammed [Twardzik] onto the floor.” (Id. ¶¶ 13-14.) As a result, Twardzik suffered injuries to his back, including aggravation of a prior back injury, “which Plaintiff has been advised may be permanent.” (Id. ¶ 15.) Given this back injury, Twardzik was temporarily unable to walk. (Id. ¶ 17.) That same day, he was medically examined by Dr. Traub, who determined that “Plaintiff was well enough to self-ambulate.” (Id. ¶¶ 19-20.) Therefore, Twardzik “was not permitted to receive meals . . . in his room, but instead was told that if he wished to receive meals he needed to walk to the cafeteria on his own.” (Id. ¶ 20.) Although Twardzik “strenuously and repeatedly objected, ” Dr. Traub refused to reevaluate his condition. (Id. ¶ 21.)

Given his alleged inability to walk to the cafeteria, Twardzik was unable to obtain food or water for approximately five days (from January 11, 2013 through January 16, 2013). (Compl. ¶ 22.) Despite Twardzik’s multiple requests that Hospital employees bring him food or water, his requests were denied due to Dr. Traub’s “improper order.” (Id. ¶ 23.) Finally, on January 16, 2013, Dr. Traub “issued a revised order permitting Plaintiff to receive food and water in his room due to his injuries making him unable to walk.” (Id. ¶ 24.) As a consequence of Dr. Traub’s alleged “negligence, ” Twardzik claims he suffered “significant malnourishment.” (Id. ¶ 25.)

Twardzik filed this lawsuit on January 5, 2015, alleging both civil rights claims under 42 U.S.C. § 1983 and state law claims against Defendants.[1] (ECF No. 1.) Specifically, Twardzik contends that Officers Devero and Jackson used excessive force against him when he attempted to enter his room, thus violating his Eighth and Fourteenth Amendment rights to be free from cruel and unusual punishment.[2] (Compl. ¶ 31.) Twardzik further alleges that Dr. Traub violated his Eight and Fourteenth Amendment rights to adequate medical care when she diagnosed Twardzik as being able to self-ambulate, thus preventing Twardzik from having meals delivered to him in his room.[3] (Id.)

Defendants filed a joint motion to dismiss the complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). (ECF No. 4.) Defendants argue that Twardzik’s claims should be dismissed pursuant to Rule 12(b)(1) for lack of subject matter jurisdiction because the complaint was pled against Defendants in their official capacities, which is barred by the Eleventh Amendment. (Mot. Dismiss 1, 4-5.) Defendants further contend that the complaint should be dismissed pursuant to Rule 12(b)(6) because Twardzik fails to state claims upon which relief could be granted. (Id. 9-13.) Twardzik asserts that the doctrine of sovereign immunity does not apply because he pled claims against Defendants in their individual, not official, capacities. (Opp’n Mot. Dismiss 4, ECF No. 5.) Twardzik also maintains that the complaint pled sufficient facts to state claims of excessive force against Officers Devero and Jackson and of inadequate medical care against Dr. Traub. (Opp’n Mot. Dismiss 5-11.) The Court will consider each of these arguments in turn.


The Eleventh Amendment is a jurisdictional bar which deprives federal courts of subject matter jurisdiction. Blanciak v. Allegheny Ludlum Corp., 77 F.3d 690, 693 n.2 (3d Cir.1996) (citing Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 98-100 (1984)). A party may properly raise Eleventh Amendment immunity in a motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1). Id.

The Eleventh Amendment bars a suit against state officials sued in their official capacities because the state is the real party in interest inasmuch as the plaintiff seeks recovery from the state treasury. Hafer v. Melo, 502 U.S. 21, 25 (1991) (“Although ‘state officials literally are persons, ’ an official-capacity suit against a state officer ‘is not a suit against the official but rather is a suit against the official’s office. As such it is no different from a suit against the State itself.’”) (citing Will v. Mich. Dept. of State Police, 491 U.S. 58, 71 (1989)). The Eleventh Amendment does not bar suits against state officials in their personal capacities. Id. at 23 (holding that “state officials sued in their individual capacities are ‘persons’ for purposes of § 1983.”).

To determine whether a plaintiff sued a defendant in his personal capacity, official capacity, or both, the Court must look to the complaint and the course of proceedings. Atwell v. Schweiker, 274 F. App’x 116, 118 (3d Cir. 2007) (citing Melo v. Hafer, 912 F.2d 628, 635 (3d Cir. 1990), aff’d, 502 U.S. 21 (1991)). Courts have found personal capacity claims where the plaintiff sued the official only and not the state. Id. (citing Melo, 912 F.2d at 636). Courts have also assumed the official was sued in his personal capacity where the plaintiff sought punitive damages, since punitive damages cannot be recovered in an official capacity suit. Id. (citing Gregory v. Chehi, 843 F.2d 111, 119-20 (3d Cir. 1988)); see also Strauss v. Cnty. of Berks, No. 10-cv-3581, 2011 WL 2038546, at *3 (E.D. Pa. May 24, 2011). Conversely, allegations that an official policy or custom led to the plaintiff’s injuries supports the conclusion that the plaintiff is bringing an official capacity claim. Woodson v. Prime Care Med., Inc., No. 12-cv-04919, 2013 WL 247372, at *4 (E.D. Pa. Jan. 23, 2013).

Here, Twardzik has sued the officials only (Officers Devero and Jackson, and Dr. Traub), but neither the municipality of Norristown nor the Commonwealth of Pennsylvania. (Compl. ¶¶ 5-9.) Twardzik seeks punitive damages for his § 1983 claims, (Id. ¶ 31), and his complaint is devoid of any allegations regarding an official policy or custom. Twardzik also contends in his opposition brief that he is suing Defendants in their individual capacities only. (Opp’n Mot. Dismiss 4 (“Plaintiff makes no claim against Defendants in their official capacities.”).) Accordingly, after a careful review of the complaint, the Court concludes that Twardzik brings this suit against the Defendants in their individual capacities. To the extent that the complaint could be construed as bringing official capacity claims against Defendants, such claims are barred by the Eleventh Amendment.


To survive a motion to dismiss under Rule 12(b)(6), a plaintiff must plead factual allegations sufficient “to raise a right to relief above the speculative level . . . on the assumption that all the allegations in the complaint are true (even if doubtful in fact).” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). The “mere possibility of misconduct” is not enough; the complaint “must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face, ” i.e., sufficient facts to permit “the court to draw the ...

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