United States District Court, E.D. Pennsylvania
Mitchell S. Goldberg, J.
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
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.”).
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.
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
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); (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.
STANDARD OF REVIEW
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
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.
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.”).
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.
Claim I - Triple Celling
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