United States District Court, M.D. Pennsylvania
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,  (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
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.)
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. 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.
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
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.
Motion to Dismiss
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).
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
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).
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.
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 ...