United States District Court, W.D. Pennsylvania
LINCOLN D. LEVYS, Plaintiff,
ORLANDO HARPER ET. AL. and ALLEGHENY COUNTY JAIL, Defendants.
Stewart Cercone Judge.
REPORT AND RECOMMENDATION RE: ECF NO. 27
MAUREEN P. KELLY CHIEF UNITED STATES MAGISTRATE JUDGE.
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
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
FACTUAL AND PROCEDURAL BACKGROUND
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,
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.” 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.
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.
filed his response in opposition. ECF No. 30. Accordingly,
Defendants' Motion to Dismiss is ripe for consideration.
STANDARD OF REVIEW
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”).
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).
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 ...