United States District Court, W.D. Pennsylvania
MAUREEN P. KELLY CHIEF UNITED STATES MAGISTRATE JUDGE.
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.
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.
FACTUAL AND PROCEDURAL BACKGROUND
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. 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.” 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]. 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.
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
STANDARD OF REVIEW
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).
se pleadings are held to “less stringent standards
than formal pleadings drafted by lawyers.” Haines
v. Kerner, 404 U.S. 519, 520 (1972).
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).
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)).
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).
“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.