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Levys v. Harper

United States District Court, W.D. Pennsylvania

May 15, 2018

LINCOLN D. LEVYS, Plaintiff,
v.
ORLANDO HARPER ET. AL. and ALLEGHENY COUNTY JAIL, Defendants.

          David Stewart Cercone Judge.

          REPORT AND RECOMMENDATION RE: ECF NO. 27

          MAUREEN P. KELLY CHIEF UNITED STATES MAGISTRATE JUDGE.

         I. RECOMMENDATION

         Plaintiff Lincoln D. Levys (“Plaintiff” or “Levys”), an inmate currently incarcerated at the State Correctional Institution at Camp Hill (“SCI-Camp Hill”), brings this action pro se and in forma pauperis pursuant to 42 U.S.C. § 1983 for the alleged violation of his rights under the Eighth and Fourteenth Amendments to the United States Constitution. Plaintiff names as defendants “Orlando Harper et. al.” and Allegheny County Jail (collectively, “Defendants”) and alleges claims for injuries sustained in an inmate attack on September 27, 2016. Defendants have filed a Motion to Dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure for Plaintiff's failure to state a claim against either named Defendant.

         For the following reasons, it is respectfully recommended that the Motion to Dismiss, ECF No. 27, be granted, but that Plaintiff be permitted leave to file an Amended Complaint to cure the pleading deficiencies indicated in this Report and Recommendation.

         II. REPORT

         A. FACTUAL AND PROCEDURAL BACKGROUND

         In the context of the pending Motion to Dismiss, the following facts alleged in Plaintiff's Complaint are accepted as true. Erickson v. Pardus, 551 U.S. 89, 93-94 (2007). After commission of a “high profile” crime, [1] Plaintiff was a “high risk” inmate incarcerated at the Allegheny County Jail pending completion of his criminal trial proceedings. ECF No. 3 at 2. After two preliminary cell changes, Plaintiff spent nearly two years “in the hole.”[2] Id. Through his criminal defense attorney, Plaintiff petitioned the judge overseeing his state criminal case for a change in housing. Given the nature of the charges against him, Plaintiff alleges he should have been placed into protective custody, but instead was “placed on the high risk max block, ” where he had no “protection.” Plaintiff alleges he was the subject of threats by fellow inmates, and on September 27, 2016, was assaulted by an inmate who walked unimpeded into Plaintiff's cell. Plaintiff was transported to a nearby hospital emergency room and diagnosed with a concussion and broken nose. Plaintiff alleges the assault was the result of the “jail[']s neglect and failure to act and protect its high risk/high profile inmates.” Id. Plaintiff was placed into protective custody upon his return from the hospital. Plaintiff states he seeks “just compensation” for his injuries. Id.

         Plaintiff filed his Complaint on June 12, 2017. ECF No. 3. Defendants filed the pending Motion to Dismiss, ECF No. 27, with their accompanying brief in support. ECF No. 28.

         Plaintiff filed his response in opposition. ECF No. 30. Accordingly, Defendants' Motion to Dismiss is ripe for consideration.

         B. STANDARD OF REVIEW

         In assessing the sufficiency of the complaint pursuant to a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the Court must accept as true all material allegations in the complaint and all reasonable factual inferences must be viewed in the light most favorable to the plaintiff. Odd v. Malone, 538 F.3d 202, 205 (3d Cir. 2008). The Court, however, need not accept bald assertions or inferences drawn by the plaintiff if they are unsupported by the facts set forth in the complaint. See California Pub. Empl. Ret. Sys. v. The Chubb Corp., 394 F.3d 126, 143 (3d Cir. 2004), citing Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997). Nor must the Court accept legal conclusions set forth as factual allegations. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). Rather, “[f]actual allegations must be enough to raise a right to relief above the speculative level.” Id., citing Papasan v. Allain, 478 U.S. 265, 286 (1986). Indeed, the United States Supreme Court has held that a complaint is properly dismissed under Fed.R.Civ.P. 12(b)(6) where it does not allege “enough facts to state a claim to relief that is plausible on its face, ” id. at 570, or where the factual content does not allow the court "to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). See Phillips v. Cty. of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008) (finding that, under Twombly, “labels and conclusions, and a formulaic recitation of the elements of a cause of action” do not suffice but, rather, the complaint “must allege facts suggestive of [the proscribed] conduct” and that are sufficient “to raise a reasonable expectation that discovery will reveal evidence of the necessary element[s] of his claim”).

         In addition, pro se pleadings and filings, “however inartfully pleaded, ” must be held to “less stringent standards than formal pleadings drafted by lawyers.” Haines v. Kerner, 404 U.S. 519, 520 (1972). If the court can reasonably read pleadings to state a valid claim on which the litigant could prevail, it should do so despite failure to cite proper legal authority, confusion of legal theories, poor syntax and sentence construction, or litigant's unfamiliarity with pleading requirements. Boag v. MacDougall, 454 U.S. 364 (1982); United States ex rel. Montgomery v. Brierley, 414 F.2d 552, 555 (3d Cir. 1969) (A “petition prepared by a prisoner ... may be inartfully drawn and should ... be read ‘with a measure of tolerance'”); Freeman v. Department of Corrections, 949 F.2d 360 (10th Cir. 1991). Under our liberal pleading rules, a district court should construe all allegations in a complaint in favor of the complainant. Gibbs v. Roman, 116 F.3d 83 (3d Cir. 1997) (overruled on other grounds); see also Nami v. Fauver, 82 F.3d 63, 65 (3d Cir. 1996) (discussing Fed.R.Civ.P. 12(b)(6) standard); Markowitz v. Northeast Land Co., 906 F.2d 100, 103 (3d Cir. 1990) (same).

         However, there are limits to the court's procedural flexibility - “pro se litigants still must allege sufficient facts in their complaints to support a claim ... they cannot flout procedural rules - they must abide by the same rules that apply to all other litigants.” Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 245 (3d Cir. 2013) (citations omitted). Accordingly, because ...


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