United States District Court, W.D. Pennsylvania
NORMAN F. HARVEY, Plaintiff,
WILLIAM SHOUPE, Defendant.
Stewart Cercone Judge.
REPORT AND RECOMMENDATION
MAUREEN P. KELLY CHIEF UNITED STATES MAGISTRATE JUDGE.
Norman F. Harvey is an inmate currently serving a term of
confinement at the Trumbell Correctional Camp in
Leavittsburg, Ohio. Proceeding pro se, Plaintiff has
filed his Amended Complaint, ECF No. 45, alleging that
Defendant William Shouppe,  Warden of the Beaver County Jail,
(“Warden Shouppe”), violated his rights under the
First, Eighth, and Fourteenth Amendments to the United States
Constitution. In particular, Plaintiff alleges claims arising
from the conditions of his confinement while awaiting trial
for crimes committed during Plaintiff's previously
imposed supervised release on parole.
before the Court is Warden Shouppe's Motion to Dismiss
for failure to state a claim. ECF No. 47. For the following
reasons, it is respectfully recommended that the Motion to
Dismiss be granted, and that Plaintiff's Amended
Complaint, ECF No. 45, be dismissed with prejudice.
indicated in the Report and Recommendation dismissing
Plaintiff's initial Complaint, ECF No. 39,
Plaintiff's claims arise out of the conditions of his
confinement in the Beaver County Jail (the
“Jail”). At the time of the events giving rise to
his claims, Plaintiff was detained in the Jail pending trial
or transfer to stand trial for several crimes allegedly
committed while released on parole from a prior conviction in
the Commonwealth of Pennsylvania. Plaintiff's Amended
Complaint omits this critical detail regarding his parolee
status, upon which all of his pending claims are
assessed. See generally ECF No. 45.
Plaintiff's status is particularly relevant as Plaintiff
alleges the violation of his constitutional rights arising
out of the deprivation of showers, recreation, telephone and
law library access during a sixteen-day period when Plaintiff
remained confined in the Jail's booking area. Plaintiff
also complains of the lack of access to a computer and mobile
law library for four weeks while he was confined in the
Jail's Special Needs Unit.
Court previously dismissed Plaintiff's claims against
Warden Shouppe, citing: (1) Plaintiff's failure to allege
facts connecting Warden Shouppe to any alleged constitutional
deprivation arising out of the conditions of his confinement;
and (2) Plaintiff's failure to allege facts establishing
that his confinement subjected him to the deprivation of
“the minimal civilized measure of life's
necessities” so as to give rise to an Eighth Amendment
claim. ECF No. 39 at 12-14, ECF No. 43. The Court's
dismissal was without prejudice, to permit Plaintiff an
opportunity to correct the noted pleading deficiencies as to
his Eighth Amendment claim.
review of Plaintiff's Amended Complaint, it is evident
that Plaintiff now alleges facts connecting Warden Shouppe to
Plaintiff's confinement in the Jail's holding area,
as well as in the Special Needs Unit. However, as more fully
explained below, Plaintiff has not alleged facts establishing
the denial of basic human needs sufficient to give rise to an
Eighth Amendment claim. Further, to the extent Plaintiff
attempts to plead a First Amendment access to court claim
arising out of the alleged denial of access to the Jail's
mobile law library, Plaintiff has not alleged facts
sufficient to give rise to a cognizable constitutional claim.
STANDARD OF REVIEW
Motion to Dismiss
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 Malone, 538 F.3d 202, 205 (3d Cir.
2008). While a complaint does not need detailed factual
allegations to survive the motion to dismiss, a complaint
must provide more than labels and conclusions. Bell
Atlantic Corp. Twombly, 550 U.S. 544, 555 (2007). A
“formulaic recitation of the elements of a cause of
action will not do.” Id. (citing Papasan
Allain, 478 U.S. 265, 286 (1986)). “Factual
allegations must be enough to raise a right to relief above
the speculative level” and sufficient “to state a
claim to relief that is plausible on its face.”
Twombly, 550 U.S. at 555, 570.
plausibility standard is not akin to a ‘probability
requirement,' but it asks for more than a sheer
possibility that a defendant has acted unlawfully.... Where a
complaint pleads facts that are ‘merely consistent
with' a defendant's liability, it ‘stops short
of the line between possibility and plausibility of
‘entitlement to relief.'” Ashcroft
Iqbal, 556 U.S. 662, 678 (2009) (quoting
Twombly, 550 U.S. at 557).
other words, at the motion to dismiss stage, a plaintiff is
required to make “‘a showing' rather than a
blanket assertion of an entitlement to relief.”
Phillips County of Allegheny, 515 F.3d 224, 232 (3d
Cir. 2008). “This ‘does not impose a probability
requirement at the pleading stage,' but instead
‘simply calls for enough facts to raise a reasonable
expectation that ...