United States District Court, M.D. Pennsylvania
William W. Caldwell, United States District Judge.
se plaintiff, Bryan Evans, filed this civil-rights action
concerning events that occurred while housed at the
Schuylkill County Prison (the Prison), in Pottsville,
Pennsylvania. Evans alleges that in April 2016 he was
assaulted by Prison staff and then placed in a cell where he
was assaulted by his cellmate. Named as Defendants are the
following SCP employees: Warden Eugene Berdanier and
Corrections Officer (CO) Joe Kayes. (ECF No. 1,
before the court is Warden Berdanier's Motion to Dismiss
the Complaint (ECF No. 11) based on Evans' failure to
state a claim against him. (ECF No. 11, Berdanier's Mot.
reasons discussed below, the court will grant Warden
Berdanier's motion to dismiss based on his failure to
state a claim against him. Evans, however, will be granted
leave to file an amended complaint. His failure to file an
amended complaint will result in this action proceeding only
against CO Kayes.
Standard of Review
motion to dismiss under Fed. R. Civ. P 12(b)(6) authorizes
the dismissal of a complaint “for failure to state a
claim upon which relief can be granted.” Under
Fed.R.Civ.P. 12(b)(6), the district court 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 is entitled to relief.” Fowler v. UPMC
Shadyside, 578 F.3d 203, 210 (3d Cir. 2009) (quoting
Phillips v. Cnty. of Allegheny, 515 F.3d 224, 231
(3d Cir. 2008)). The court may also rely on exhibits attached
to the complaint and matters of public record. Sands v.
McCormick, 502 F.3d 263, 268 (3d Cir. 2007).
to Fed.R.Civ.P. 8(a), a complaint need only “include a
short and plain statement of the claim showing that the
pleader is entitled to relief, in order to give the defendant
fair notice of what the claim is and the grounds upon which
it rests.” “[T]he factual allegations of a
complaint ‘must be enough to raise a right to relief
above the speculative level' and the complaining party
must offer ‘more than labels and conclusions' or
‘formulaic recitation of the elements of a cause of
action.'” W. Run Student Hous. Assocs., LLC. v.
Huntington Nat'l Bank, 712 F.3d 165, 169 (3d Cir.
2013)(quoting Bell Atl. Corp. v. Twombly, 550 U.S.
544, 555, 127 S.Ct. 1955, 1964, 167 L.Ed.2d 929 (2007)).
Legal conclusions are “not entitled to the assumption
of truth.” Bistrian v. Levi, 696 F.3d 352, 365
(3d Cir. 2012)(citing Ashcroft v. Iqbal, 556 U.S.
662, 678, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009)).
pro se pleadings must be liberally construed and “held
‘to less stringent standards than formal pleadings
drafted by lawyers.'” Fantone v. Latini,
780 F.3d 184 (3d Cir. 2015) (citing Haines v.
Kerner, 404 U.S. 519, 520 - 21, 92 S.Ct. 594, 596, 30
L.Ed.2d 652 (1972)); see also Erickson v. Pardus,
551 U.S. 89, 94, 127 S.Ct. 2197, 2200, 167 L.Ed.2d 1081
(2007); Giles v. Kearney, 571 F.3d 318, 322 (3d Cir.
2009). Pro se litigants are to be granted leave to
file a curative amended complaint even when a plaintiff does
not seek leave to amend, unless such an amendment would be
inequitable or futile. See Estate of Lagano v. Bergen
Cnty. Prosecutor's Office, 769 F.3d 850, 861 (3d
Cir. 2014). A complaint that sets forth facts which
affirmatively demonstrate that the plaintiff has no right to
recover is properly dismissed without leave to amend.
Grayson v. Mayview State Hospital, 293 F.3d 103, 106
(3d Cir. 2002).
this standard in mind, the following is the background to
this litigation, as Evans alleges it.
April 12, 2016, Evans asked CO Joe Kayes for his inmate ID
number so he could use the inmate telephone system. At the
time, CO Kayes was watching the television in the block's
dayroom. (ECF No. 1, p. 3). Evans “stated you obusly
(sic) arnt (sic) busy.” (Id.) CO Kayes told
Evans to “respect him.” (Id.) Evans
“said your (sic) not busy.” (Id.) CO
Kayes then stated he would “make [Evans] stay [at the
Prison] a living hell”. (Id.) CO Kayes then
handcuffed Evans, punched him in the back of the head and
called for additional officers. (Id.) Even though
Evans told “them” he could not breathe, CO Kayes
“swept [his] feet” and “smashed” his
face off the Delta block door. (Id.) Evans was
Evans awoke, he had no feeling in his face and his tongue
tingled. He was in a cell with Josh Kaylor in the “RHU
block.” (Id.) Inmate Kaylor then sucker
punched Evans in the head. Unidentified prison staff removed
him from the cell and he was “beaten on Echo Block
RHU.” (Id.) The following day, on April 13,
2014, Evans received a misconduct report. (Id., p.
appears to be making Eighth Amendment claims for excessive
force and a failure to protect. As relief, he seeks