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Almuhsin v. Warden of Dauphin County Prison

United States District Court, M.D. Pennsylvania

March 7, 2017

AYYUB ALMUHSIN, Plaintiff
v.
WARDEN OF DAUPHIN COUNTY PRISON, et al., Defendants

          MEMORANDUM

         I. Background

         On March 1, 2016, Plaintiff Ayyub Almuhsin, an inmate at the Dauphin County Prison, Harrisburg, Pennsylvania filed a complaint under 42 U.S.C. § 1983 against (1) the Warden of the Dauphin County Prison, [1] (2) Isaiah Rotan Rotan (“Rotan”), an inmate at the Dauphin County Prison, and (3) several unnamed correctional officers. (Doc. Nos. 1 & 1-1.) In the complaint Almuhsin alleges that on November 13, 2015, he was stabbed four times with a homemade shank by Rotan, and that the correctional officers who intervened subjected Plaintiff to excessive force. Id. Almuhsin further alleges that the correctional officers were negligent in failing to search all inmates before they left their cells for recreation, and that had they done so, they would have discovered the shank. Id. With respect to the claim of excessive use of force, Almuhsin contends that after the stabbing he was bleeding and compliant with all of the correctional officers' commands; although he did not resist, after applying handcuffs and placing him on the ground, the correctional officers sprayed him with “pepper spray” and then “dragged” him “down to administrative lock down” where they punched, kicked and kneed him while in handcuffs and bleeding from his wounds. (Id.)

         The complaint does not allege any personal involvement by the Warden of the Dauphin County Prison. Almuhsin requests compensatory damages in a total amount of $62, 000.00. Id. Along with the complaint, Almuhsin filed a motion for leave to proceed in forma pauperis under 28 U.S.C. § 1915. (Doc. No. 2.)

         The court screened the complaint pursuant to the Prison Litigation Reform Act (the "PLRA"), Pub. L. No. 104-134, 110 Stat. 1321 (April 26, 1996), granted Almuhsin leave to proceed in forma pauperis and dismissed the complaint as it related to Almuhsin's claims against the Warden and inmate Rotan.[2] Furthermore, Almuhsin's failure to protect and excessive force claims leveled against unidentified correctional officers were dismissed with leave to file an amended complaint. The reasons are fully set forth in the Court's memorandum dated March 18, 2016. (Doc. No. 9.)

         On May 6, 2016, Almuhsin filed an amended complaint naming two correctional officers, Timothy Brown and Randy Pope. (Doc. No. 10.) Upon review of the amended complaint pursuant to the PLRA, the court permitted the excessive force claims against Brown to go forward. However, the failure to protect claim leveled again Pope was insufficient for the reasons set forth in the memorandum of March 18, 2016. In sum, there were no allegations in the amended complaint from which it could be concluded that Pope was aware of facts from which it could be inferred that Rotan posed a danger to Plaintiff and that Pope actually drew that inference and disregarded the risk. Consequently, the amended complaint was dismissed as it relates to Pope without further leave to file a second amended complaint.

         On July 1, 2016, Defendant Brown, the only remaining defendant in this action, waived service of the amended complaint and on July 26, 2016, filed a motion to dismiss the amended complaint. (Doc. No. 22.) In the motion Brown contends, inter alia, that Almuhsin did not exhaust his administrative remedies. For the reasons set forth below, Brown's motion to dismiss will be granted.

         II. Motion to Dismiss

         Fed.R.Civ.P. 12(b)(6) authorizes dismissal of a complaint for “failure to state a claim upon which relief can be granted.” Under Rule 12(b)(6), we must “accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief.” Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir.2009) (quoting Phillips v. County of Allegheny, 515 F.3d 224, 231 (3d Cir.2008)). While a complaint need only contain “a short and plain statement of the claim, ” Fed.R.Civ.P. 8(a)(2), and detailed factual allegations are not required, Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964, 167 L.Ed.2d 929 (2007), a complaint must plead “enough facts to state a claim to relief that is plausible on its face.” Id. at 570, 550 U.S. 544, 127 S.Ct. 1955 at 1974, 167 L.Ed.2d 929. “The plausibility standard is not akin to a ‘probability requirement, ' but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868, ___(2009) (quoting Twombly, 550 U.S. at 556, 127 S.Ct. at 1965.) “[L]abels and conclusions” are not enough, Twombly, 550 U.S. at 555, 127 S.Ct. at 1964-65, and a court “‘is not bound to accept as true a legal conclusion couched as a factual allegation.'” Id., 127 S.Ct. at 1965 (quoted case omitted).

         In resolving the motion to dismiss, we thus “conduct a two-part analysis.” Fowler, supra, 578 F.3d at 210. First, we separate the factual elements from the legal elements and disregard the legal conclusions. Id. at 210-11. Second, we “determine whether the facts alleged in the complaint are sufficient to show that the plaintiff has a “‘plausible claim for relief.'” Id. at 211 (quoted case omitted).

         Although the court is generally limited in its review to the facts contained in the complaint, it may also consider matters of public record, orders, exhibits attached to the complaint and items appearing in the record of the case. Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1384 n. 2 (3d Cir.1994); see also In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir.1997).

         III. Discussion

         Defendant Brown contends that Almuhsin's amended complaint should be dismissed for his failure to exhaust available administrative remedies. In the amended complaint Almuhsin stated that he exhausted his administrative remedies by filing charges against inmate Rotan. However, Almuhsin was required to exhaust his administrative remedies with respect to his claim against Defendant Brown. Almuhsin in his brief in opposition to Brown's motion to dismiss did not address Brown's exhaustion argument.

         The complaint as stated was filed on March 1, 2016, and the amended complaint on May 6, 2016. Although Almuhsin was released from the Dauphin County Prison in September, 2016 (Doc. Nos. 26, 27), that fact does not relieve him of the PLRA exhaustion requirement. Ahmed v. Dragovich, 297 F.3d 201, 210 (3d Cir. 2002)(“Although Ahmed would have been free of the strictures of the PLRA if he had filed a timely complaint after his release from prison, he is bound by the PLRA because his suit was filed on July 29, 1998, almost three years before he was released from prison.”); Johnson v. Allegheny County Court of Common Pleas, ___F. App'x ___, ___, 2016 WL 5956689, at *1 n.1 (3d Cir. Oct. 4, 2016)(“Johnson was incarcerated at the time he filed the complaint below, but was released a few months later. The PLRA applied notwithstanding Johnson's post-suit release.”); Defreitas v. Montgomery County Correctional Facility, 525 F. App'x 170, 176 (3d Cir. May 7, 2013)(“[A] plaintiff's status as a prisoner for purposes of the PLRA is judged as of the time he files his original complaint. At that time, Defreitas only complied with the exhaustion requirement with respect to his claims for the yard, gym, and weight room. Accordingly, the District Court did not err in concluding he could only proceed with those exhausted claims, and summary judgment in favor of Appellees was proper on the other claims.”); Miller v. Price, 2016 WL 1089155, at *6 (M.D.Pa. Mar. 21, 2016)(“[T]he PLRA exhaustion requirement does not apply to prisoners who file a timely complaint after release from prison, but does apply to prisoners who file a complaint while in prison and are ...


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