Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Torres v. Beverage

United States District Court, W.D. Pennsylvania

March 21, 2017

HECTOR VARGAS TORRES, Plaintiff,
v.
CO BEVERAGE, DAVID DORALLE SMITH, CO CORNS, STEPHEN BUZAS, SUSAN BERRIER, CARL E. WALKER, SWITZER, SGT. GARY DOBISH, and SECRETARY WETZEL, Defendants. Re: ECF No. 30

          OPINION

          MAUREEN P. KELLY CHIEF UNITED STATES MAGISTRATE JUDGE.

         Plaintiff, Hector Vargas Torres, a prisoner incarcerated at the State Correctional Institution at Huntingdon, instituted this action seeking declaratory relief, injunctive relief, compensatory damages and punitive damages for civil rights violations by employees of the State Correctional Institution at Fayette (“SCI Fayette”). ECF No. 1. Presently before the Court is a Motion to Dismiss filed by Defendants CO Beverage, David Doralle Smith, CO Corns, Stephen Buzas, Susan Berrier, Carl E. Walker, Switzer, Sgt. Gary Dobish, and Secretary Wetzel (collectively, “Defendants”). ECF No. 30.

         For the following reasons, Defendants' Motion to Dismiss will be denied in part and granted in part without prejudice to Plaintiff's ability to file an Amended Complaint.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         Plaintiff filed his Complaint on June 23, 2016. ECF No. 1. Plaintiff makes the following allegations in his Complaint. On January 21, 2015, Defendant Sergeant Dobish radioed Defendant Switzer, a lieutenant at SCI Fayette, and told him that Plaintiff had his cell door covered with a mattress. Id. ¶ 20.[1] Defendant Switzer called Plaintiff to come to the door to be handcuffed. Id. ¶ 5. Plaintiff tried to put his hands through the food slot, but was sprayed in the face, chest and hands with half of a can of “O.C. spray.”[2] Id. Defendants Dobish, Beverage, Smith, Corns, Wetzel and Walker were present during the spraying but did nothing to prevent it or stop it. Id. ¶¶ 11-15, 18. Defendant Buzas, the unit manager, did nothing to stop the spraying. Id. ¶ 16. Plaintiff told all Defendants that he was allergic to O.C. spray and it would burn his skin, but Defendants did not call “medical” to find out about Plaintiff's allergy. Id. ¶ 6. The “medical department” tampered with Plaintiff's medical records and created a new record stating that Plaintiff was not allergic to O.C. spray. Id. ¶ 7. Defendant Berrier, the head supervisor of the medical department, is responsible for not providing information as to Plaintiff's allergy and for tampering with his medical records. Id. ¶¶ 17[a]-17[b].[3] Further, although Plaintiff was permitted to clean his face, he was not permitted to clean his hands or his chest and was denied a shower. Id. Plaintiff requested a sick call that day but was denied one. Id. ¶ 21. Plaintiff requested another sick call three weeks later but that was also denied. Id. ¶ 22.

         On October 5, 2016, Defendants filed the instant Motion to Dismiss and a Brief in Support thereof. ECF Nos. 30-31. On December 1, 2016, Plaintiff filed an Affidavit which the Court construed as a response in opposition to the Motion to Dismiss. ECF Nos. 37-38. The Motion to Dismiss is now ripe for consideration.

         II. STANDARD OF REVIEW

         As the United States Supreme Court explained in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), a complaint may properly be dismissed pursuant to Federal Rule of Civil Procedure 12(b)(6) if it does not allege “enough facts to state a claim to relief that is plausible on its face.” Id. at 570. In assessing the merits of a claim subject to a motion to dismiss, a court must accept all alleged facts as true and draw all inferences gleaned therefrom in the light most favorable to the non-moving party. Phillips v. County of Allegheny, 515 F.3d 224, 228 (3d Cir. 2008) (citing Worldcom, Inc. v. Graphnet, Inc., 343 F.3d 651, 653 (3d Cir. 2003)). A pleading party need not establish the elements of a prima facie case at this stage; the party must only “put forth allegations that ‘raise a reasonable expectation that discovery will reveal evidence of the necessary element[s].'” Fowler v. UPMC Shadyside, 578 F.3d 203, 213 (3d Cir. 2009) (quoting Graff v. Subbiah Cardiology Associates, Ltd., 2008 WL 2312671 (W.D. Pa. June 4, 2008)). The scope of review may extend to “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).

         Pro se pleadings are held to “less stringent standards than formal pleadings drafted by lawyers.” Haines v. Kerner, 404 U.S. 519, 520 (1972).

         III. DISCUSSION

         A. Legal Principles

         In order to succeed on a Section 1983 claim, a claimant must show: (1) the conduct complained of was performed by a person acting under color of state law; and (2) this conduct deprived the claimant of rights, privileges, or immunities secured by the Constitution or laws of the United States. 42 U.S.C. § 1983; Kost v. Kozakiewicz, 1 F.3d 176, 184 (3d Cir. 1993).

         It is well established that “[a] defendant in a civil rights action must have personal involvement in the alleged wrongs to be liable, and cannot be held responsible for a constitutional violation which he or she neither participated in nor approved.” Baraka v. McGreevey, 481 F.3d 187, 210 (3d Cir. 2007). Personal involvement in the alleged wrongdoing may be shown “through allegations of personal direction or of actual knowledge and acquiescence.” Evancho v. Fisher, 423 F.3d 347, 353 (3d Cir. 2005) (quoting Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988)).

         Finally, when dismissing a civil rights case for failure to state a claim, a court must give the plaintiff an opportunity to amend the complaint unless it would be inequitable or futile to do so. See Fletcher-Harlee Corp. v. Pote Concrete Contractors, Inc., 482 F.3d 247, 251 (3d Cir. 2007).

         B. Plaintiff's Claims

         In the “Legal Claims” section of his Complaint, Plaintiff raises claims of: (1) excessive force against Defendant Switzer for spraying him, ECF No. 1 ¶¶ 26-27; (2) excessive force against unnamed persons who witnessed the spraying, failed to correct it and encouraged its continuation, id. ¶ 28; (3) retaliation against Defendant Switzer for threatening Plaintiff with physical violence for exercising his rights to seek redress through prison grievance system, id. ¶ 29, and (4) deliberate indifference against Defendant Switzer and “his co-conspired officers mentioned here, ” id. ¶ 30.

         C. Defendants' ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.