United States District Court, W.D. Pennsylvania
Paradise Baxter United States District Judge
REPORT AND RECOMMENDATION ON DEFENDANTS' MOTIONS
TO DISMISS [ECF NOS. 38, 44]
RICHARD A. LANZILLO, UNITED STATES MAGISTRATE JUDGE
respectfully recommended that the DOC Defendants' motion to
dismiss [ECF No. 44] be granted in part and denied in part.
It is further recommended that the MedicalDefendants'
motion to dismiss [ECF No. 38] be denied.
David Jordan, a prisoner in the custody of the Pennsylvania
Department of Corrections ("DOC"), filed a
complaint pursuant to 42 U.S.C. § 1983 for alleged
violations of his civil rights under the First and Eighth
Amendments to the United States Constitution. ECF No. 3.
Presently pending before the Court are (1) DOC
Defendants' motion to dismiss [ECF No. 44], and (2) the
Medical Defendants' motion to dismiss [ECF No. 38], both
of which were filed pursuant to Federal Rule of Civil
Standard of Review
Motion to Dismiss
motion to dismiss pursuant to Rule 12(b)(6) tests the legal
sufficiency of the complaint. Kost v. Kozakiewicz, 1
F.3d 176, 183 (3d Cir. 1993). In deciding a motion to
dismiss, the court is not opining on whether the plaintiff
will be likely to prevail on the merits; rather, the
plaintiff must only present factual allegations sufficient
"to raise a right to relief above the speculative
level." Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 556 (2007) (citing 5 C. Wright & A. Miller,
Federal Practice and Procedure § 1216, pp. 235-236 (3d
ed. 2004)). See also Ashcroft v. Iqbal, 556 U.S. 662
(2009)). A complaint should only be dismissed pursuant to
Rule 12 (b)(6) if it fails to allege "enough facts to
state a claim to relief that is plausible on its face."
Twombly, 550 U.S. at 570 (rejecting the traditional
12 (b)(6) standard established in Conley v. Gibson,
355 U.S. 41 (1957)). In making this determination, the court
must accept as true all well-pled factual allegations in the
complaint and views them in a light most favorable to the
plaintiff. U.S. Express Lines Ltd. v. Higgins, 281
F.3d 383, 388 (3d Cir. 2002).
pleadings, "however inartfully pleaded," must be
held to "less stringent standards than formal pleadings
drafted by lawyers." Haines v. Kerner, 404 U.S.
519, 520-521 (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.
Bierley, 141 F.2d 552, 555 (3d Cir. 1969) (petition
prepared by a prisoner may be inartfully drawn and should be
read "with a measure of tolerance"); Smith v.
U.S. District Court, 956 F.2d 295 (D.C. Cir. 1992);
Freeman v. Dep't of Corrections, 949 F.2d 360
(10th Cir. 1991). Under our liberal pleading rules, during
the initial stages of litigation, 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). See, e.g., 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).
because Plaintiff is proceeding pro se, this Court evaluates
Plaintiffs Complaint under this more generous standard.
Material Facts Alleged in Plaintiffs Complaint
1, 2016, at 8:25 am, approximately three months after
Plaintiff filed a lawsuit against Defendant Drayer, Plaintiff
was assaulted by several prison guards. ECF No. 3, ¶
21-31; 42. The incident began when Defendants Baumcratz and
Griffin arrived at Plaintiffs cell to perform a
"security cell inspection." Id. at ¶
21. They handcuffed Plaintiff, and then kicked around his
legal papers while Defendant Griffin told Plaintiff to
"stop filing shit." Id. at ¶ 21-22.
Defendant Drayer, who smelled like liquor, then arrived on
the scene. Id. at ¶ 25. He and Defendant
Baumcratz then attacked Plaintiff, first by pushing Plaintiff
into a "blindspot" out of view of the security
cameras, and then by attempting to pull Plaintiffs shoulder
out of its socket, punching him several times in the back of
his head, slamming his head against the wall, choking him,
twisting his fingers, and then slamming him on the ground.
Id. at ¶¶ 26-28. Defendants Cochran,
Murin, Lutz, Griffin, and Palmer were all present but failed
to intervene. Id. at ¶ 29. Together, those
Defendants then "yanked" a tether which was tied to
Plaintiffs handcuffs and dragged him backwards a distance of
ten feet. Id. at ¶ 35-36. As a result of the
incident, Plaintiff suffered extreme pain in his wrists,
lower back, knees, and neck, as well as a permanent loss of
feeling in his left thumb, and several issues with his
the incident, at 8:58 am, Plaintiff lay on the floor of his
cell, moaning and crying out for medical assistance.
Id. at ¶ 45. Defendant Nurse Jordan arrived and
left immediately after Plaintiff told her of the pain in his
back, neck, fingers, wrist, and head. Id. at ¶
46-47. She did not physically examine him or provide any
medical assistance. Id. at ¶ 53.
9:15 am to 11:37 am, Plaintiff told Defendants Kosarek,
Cochran, and LaRoche that he had been attacked by guards and
needed medical attention. Id. at ¶ ...