United States District Court, E.D. Pennsylvania
G. SMITH, J.
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
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.
ALLEGATIONS AND PROCEDURAL HISTORY
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. 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. 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.
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.
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. Id. at 2 & Ex.
I. In the denial, Link indicated that “[t]he incident
is being investigated by OSII.” Id. at Ex. I.
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.
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
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
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.
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.