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Shaw v. Nutter

United States District Court, E.D. Pennsylvania

March 6, 2017



          Mitchell S. Goldberg, J.

         Pro se Plaintiff, Omar Tyrick Shaw, brings this action under 42 U.S.C. § 1983 (“Section 1983”). He alleges violations of his constitutional rights while incarcerated as a pretrial detainee within the Philadelphia Prison System (“PPS”). Defendants, represented by the City of Philadelphia Law Department (“City”), have filed a motion to dismiss for failure to state a claim. In an order dated May 9, 2016, Shaw was directed to file a written response to the Defendants' motion to dismiss, or ask the Court to decide the motion without a response from him.[1]

         Shaw did not file a response to the Defendant's motion to dismiss. Defendants filed a second motion to dismiss for lack of prosecution on February 14, 2017. However, a motion to dismiss for failure to state a claim should not be granted solely because the motion is unopposed. Stackhouse v. Mazurkiewicz, 951 F.2d 29, 30 (3d Cir. 1991) (stating that before dismissal a court should analyze the complaint to determine if it does, in fact, state a claim); see also Ray v. Reed, 240 F. App'x 455, 456 (3d Cir. 2007) (“[A] motion to dismiss under Rule 12(b)(6) should not be granted without an analysis of the underlying complaint, notwithstanding local rules regarding the granting of unopposed motions.”).

         Accordingly, I will deny Defendants' second motion to dismiss based upon lack of prosecution and will consider the facts in Shaw's amended complaint. For the reasons explained below, Defendants' first motion to dismiss will be granted in part and denied in part.[2]


         Shaw filed his original complaint on March 9, 2015. This complaint was dismissed for failure to state a claim because Shaw failed to include allegations that the Defendants were personally involved in the alleged deprivation of his constitutional rights. (Doc. No. 6). Shaw was given leave to file an amended complaint, which he filed on October 28, 2015. (Doc. No. 8). In his amended complaint, Shaw asserts claims against Defendants acting as supervisors: Michael Nutter, the former Mayor of Philadelphia; Louis Giorla, the former Commissioner of the PPS; and Michelle Farrell, former Warden of Curran-Fromhold Correctional Facility (“CFCF”).

         Shaw appears to allege three distinct claims: (1) that his constitutional rights under the Fourteenth Amendment were violated as a result of overcrowded prison conditions, commonly referred to as a “triple celling” claim (Claim I);[3] (2) that his constitutional right under the First Amendment to freely practice religion was violated (Claim II); and (3) a tort claim for intentional infliction of emotional distress (Claim III). The City filed a motion to dismiss on behalf of all Defendants.


         To survive a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), a complaint must “contain sufficient factual matter, accepted as true, to ‘state a claim for relief that is plausible on its face.'” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The plausibility standard requires more than a “sheer possibility that a defendant has acted unlawfully.” Id. While it “does not impose a probability requirement at the pleading stage, ” plausibility does require “enough facts to raise a reasonable expectation that discovery will reveal evidence of the necessary elements of a claim.” Phillips v. Cty. of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008).

         To determine the sufficiency of a complaint under Twombly and Iqbal, a court must take the following three steps: (1) the court must “tak[e] note of the elements a plaintiff must plead to state a claim”; (2) the court should identify the allegations that, “because they are no more than conclusions, are not entitled to the assumption of truth”; and (3) “where there are well-pleaded factual allegations, [the] court should assume their veracity and then determine whether they plausibly give rise to an entitlement for relief.” Burtch v. Milberg Factors, Inc., 662 F.3d 212, 221 (3d Cir. 2011) (citations omitted). Courts must construe the allegations in a complaint “in the light most favorable to the plaintiff.” Id. at 220.

         A pro se plaintiff's complaint is to be read liberally, particularly where that plaintiff is a prisoner. Spruill v. Gillis, 372 F.3d 218, 236 n.12 (3d Cir. 2004) (citing Alston v Parker, 363 F.3d 229, 233-34 (3d Cir. 2004)). A motion to dismiss for failure to state a claim should be granted only if it appears beyond doubt that a pro se plaintiff can prove no set of facts in support of the claim that would entitle him to relief. Leamer v. Fauver, 288 F.3d 532, 547 (3d Cir. 2002). While a pro se plaintiff cannot be held to as high a pleading standard as other litigants, a court cannot infer facts central to the plaintiff's claims that are not stated in the complaint or other documents before the court. See, e.g., Hamilton v. Jamieson, 355 F.Supp. 290, 298 (E.D. Pa. 1973); Wells v. Brown, 891 F.2d 591, 592-94 (6th Cir. 1988) (collecting cases where courts have required pro se litigants to adhere to basic pleading requirements); Case v. State Farm Mutual Automobile Insurance Co., 294 F.2d 676, 678 (5th Cir. 1961) (“[T]here is no duty [on the part] of the trial court or appellate court to create a claim which appellant has not spelled out in his pleading.”).


         Defendants' motion asserts that the amended complaint fails to state a claim because Shaw failed to allege the Defendants' “personal involvement” in the alleged constitutional violations. Defendants do not make a distinction between the Fourteenth Amendment and First Amendment violations alleged, and do not address the intentional infliction of emotion distress claim in their motion to dismiss. I will address each claim in turn below.

         A. Claim I - Triple Celling

         Shaw first argues that Defendants violated his 5th, 8th, and 14th Amendment rights in ignoring the practice of triple celling at CFCF. Shaw states that he has been placed in three-man and four-man cells that are dirty, forced to sleep on the floor on a plastic boat, and subjected to various diseases and bodily pains due to sleeping on the boat. He alleges that Defendant Nutter knew about the conditions because Shaw wrote letters to Nutter. Shaw explains that similar lawsuits have been filed and there is “no way [Nutter] could or would have been oblivious to the defendant and other situations and thereof.” Regarding Defendant Giorla, Shaw states that he knew about the situation because Shaw spoke with Giorla on two occasions and asked to be moved to a different cell, to which Giorla said “I can't do anything about it.” Shaw also cites to an interview with Giorla by the Metro newspaper regarding the overcrowding. Finally, Shaw ...

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