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Henry v. Kerschner

United States District Court, E.D. Pennsylvania

May 4, 2018

DWAYNE HENRY, Plaintiff,


          EDWARD G. SMITH, J.

         A state prisoner brings the instant action under 42 U.S.C. § 1983 against three officials from a former state correctional institution in which he was incarcerated. These official and individual capacity claims appear to arise out of the plaintiff's assertion that the defendants did not appropriately respond to his mental health needs after he was physically and sexually assaulted by a male correctional officer in 2015. He also attempts to assert claims that the defendants failed to act in accordance with the Prison Rape Elimination Act and related prison policies and guidelines. The plaintiff seeks leave to proceed in forma pauperis.

         As discussed in more detail below, the court will allow the plaintiff to proceed in forma pauperis, but must dismiss the complaint because (1) the Eleventh Amendment bars the plaintiff's claims against the defendants in their official capacities; (2) there is no private right of action under the Prison Rape Elimination Act; and (3) he has failed to state a plausible claim against these defendants for their purported deliberate indifference to his serious medical needs. Although the court will not allow the plaintiff to file an amended complaint concerning the official capacity claims or his Prison Rape Elimination Act-related claims, the court will grant him leave to file an amended complaint to the extent that he can allege a plausible deliberate indifference claim against the defendants.


         The pro se plaintiff, Dwayne Henry (“Henry”), commenced this action by filing an application to proceed in forma pauperis and a proposed complaint against the defendants, Cynthia Link (“Link”), Kerry Kerschner (“Kerschner”), and Darina Varina (“Varina”), in their official and individual capacities, on or about April 21, 2018.[1] In the complaint, Henry alleges that on August 7, 2015, he was incarcerated at the State Correctional Institution - Graterford (“SCI - Graterford”). See Compl. at 1, 2. On this date, a correctional officer named Germain Wright (“Wright”) entered Henry's cell, locked the door behind him, and struck Henry in the face with a closed fist.[2] Id. at 2. Wright then grabbed Henry's penis and testicles with one hand and struck him several more times with his other hand. Id.

         On August 26, 2015, Henry filed an inmate grievance regarding Wright's “‘Physcal [sic] and Sexual' Attack.” Id. at Exs. A-C. Kerschner, the assistant superintendent at SCI - Graterford and the individual responsible for reviewing inmate grievances, rejected the grievance on September 3, 2015, because it was untimely. Id. at 1, 2 & Exs. D, E. Kerschner also failed to report the incident as allegedly required by prison policies implementing the Prison Rape Elimination Act of 2003 (“PREA”). Id. at 2.

         Henry appealed from Kerschner's initial denial of his grievance to Link, who was the superintendent at SCI - Graterford and the individual responsible for reviewing inmates' appeals from grievance denials. Id. at 1, 2 & Exs. F-I. Link denied the appeal, agreeing with Kerschner that Henry did not timely file the grievance.[3] Id. at 2 & Ex. I. In the denial, Link indicated that “[t]he incident is being investigated by OSII.” Id. at Ex. I.

         After Link denied the appeal, Henry filed a “Final Appeal” on October 1, 2015, which also indicated that Wright had sexually assaulted him. Id. at 2 & Exs. J-N. On October 15, 2015, Varina, the “Chief Grievance Officer” at SCI - Graterford, dismissed the “Final Appeal.” Id. at 1, 2 & Ex. O. Henry asserts that in denying the appeal, Varina misled him “to believe that his claim of being sexually assaulted was being investigated and not being ignored.” Id. at 2.

         On January 24, 2018, more than two years after the denial of the “Final Appeal, ” Henry had an initial interview with a psychologist after he was transferred to SCI - Smithfield. Id. at 3. During this interview, the psychologist asked Henry if he had ever been sexually abused during his incarceration. Id. Henry described the incident with Wright in August 2015, and indicated that “since this incident [he] has been expereancing [sic] anxiety, trouble sleeping at night due to nightmares of the incident, depression to the point of thinking suicidal [sic], and sometimes not eating for days.” Id. (alteration to original). In response to Henry's statements, the psychologist informed him that she had to report this incident to the security department and initiate a PREA investigation. Id. The psychologist also offered Henry counseling and stated that he could also receive psychological treatment from an outside local hospital.[4] Id.

         Henry later met with the same psychologist on February 6, 2018, during which the psychologist stated that SCI - Smithfield's security staff contacted SCI - Graterford's security staff and was informed that no PREA investigation was done and the prison did not file a PREA report in accordance with the policies implementing PREA.[5] Id.

         Based on the aforementioned allegations, Henry filed the instant action seeking damages under 42 U.S.C. § 1983 against the defendants because they are “liable for a deliberate indifference violation by reason of there [sic] failure to report and provided [sic] [him] with psychological treatment when they were informed of a sexual assault.” Id. at 4 (alteration to original). In this regard, Henry essentially alleges that once the defendants learned about Wright's sexual assault via Henry's grievances and appeals, they showed deliberate indifference to his serious mental health needs by failing to inform him of or refer him for psychological counseling. Id. at 4-6. He also seeks to bring a claim based on the defendants' “failure to follow there [sic] own rules, regulations, and policies concerning ‘PREA, '” which require reporting and investigation of sexual assaults and providing medical treatment to the victim of the assault. Id. at 5.

         As already noted above, Henry attached copies of his grievances and appeals as exhibits to the complaint. Those exhibits reflect that Henry reported the sexual assault and that prison officials indicated that his claims were being investigated. Nonetheless, the grievances and appeals did not describe Henry's injuries or mention any mental health concerns that Henry experienced as a result of the assault with the exception of a grievance submitted on August 26, 2015, which alluded to “mental health issues” that he was experiencing in connection with the attack. Id. at Ex. C.


         A. The ...

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