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Nichols v. Loppe

United States District Court, E.D. Pennsylvania

July 30, 2019



          JOSEPH F. LEESON, JR., J.

         In a prior Memorandum and Order, the Court granted the motion of pro se Plaintiff Ronell Nichols to proceed in forma pauperis and dismissed his Complaint in part with prejudice and in part without prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii). Nichols, a prisoner confined at the George W. Hill Correctional Facility (“GWH”), was granted leave to file an Amended Complaint (“AC”) to attempt to cure the defects in the claims dismissed without prejudice. Nichols filed an AC on June 27, 2019 (ECF No. 10.) He has named as Defendants Correctional Officers Loppe, Kenneth, Starkey and Boyd, Warden David Byrne, Deputy Warden Mario Colucci, Superintendent John A. Reilly, Jr., the GEO Group, Inc., and Grievance Coordinators Kevin Conroy and Gabrielle Price. For the following reasons, the AC will be dismissed in part with prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and the remaining claims will be served.

         I. FACTS

         Nichols asserts that during the night of April 14, 2019, he fell off the top bunk bed in his sleep. He informed Defendant Loppe that he was injured, but Loppe allegedly told him he was playing games and to stop pushing the call button. (ECF No. 10 at 20.)[1] The next morning, Defendant Starkey came onto the block with a nurse, but prevented Nichols from talking to the nurse. (Id.) Nichols told Defendant Boyd about his fall, but Boyd told him to “get out of my face.” (Id. at 8.) He alleges that Loppe, Starkey and Boyd had actual knowledge of his medical needs but failed to take reasonable measures to abate it. (Id.) He also told Defendant Kenneth about his fall. Kenneth ignored him because the officer was allegedly trying at the time to deal with Nichols's cellmate who refused to get up for inspection. (Id.) On April 22, 2019, Nichols told Kenneth that wanted to go to medical because he was suicidal, but Kenneth did nothing. (Id. at 8-9.) Nichols concedes that he was seen by the medical department, but asserts he was seen only when he put in a sick call slip, and that these Defendants did nothing to help him get medical attention. (Id. at 10.)

         The allegations against Defendants Byrne, Colucci, Reilly and the GEO Group, Inc. concern the conditions at GWH. Nichols asserts that other inmates have suffered injuries due to falls from upper bunks, but these Defendants have failed to install safety rails or provide ladders, even though the prisoner handbook directs inmates not to jump from the top bunk to the floor. (Id. at 11-12.) He alleges that these Defendants also have actual knowledge of the conditions because Nichols directed grievances to Byrne, Colucci and Reilly. (Id. at 13.)

         Nichols also alleges that these Defendants know that conditions in the prison intake area are constitutionally defective. He alleges that he was forced to sleep on a cold bench in a cold cell with twenty other inmates in the intake section, that the intake cell smelled of urine, food was on the floor, and he was forced to sleep in a “boat” - a type of temporary bedding - near a toilet being used by other inmates. (Id. at 14.) He alleges the showers were unsanitary, he was not provided with shower shoes, and risked getting a foot infection. (Id.) Once assigned to a cell, he was not given access to cleaning supplies to clean his cell, which was also unsanitary. (Id. at 14-15.) Finally, Nichols alleges that Defendants Price and Conroy, who are grievance counselors at GWH, exhibited deliberate indifference to his rights by failing to act on the information in his grievances and failing to “remedy the wrong.” (Id. at 16.)


         Because Nichols has been granted leave to proceed in forma pauperis, 28 U.S.C. § 1915(e)(2)(B) requires the Court to dismiss the AC if, among other things, it is frivolous or fails to state a claim. Whether the AC fails to state a claim under § 1915(e)(2)(B)(ii) is governed by the same standard applicable to motions to dismiss under Federal Rule of Civil Procedure 12(b)(6), see Tourscher v. McCullough, 184 F.3d 236, 240 (3d Cir. 1999), which requires the Court to determine whether the AC contains “sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quotations omitted). Conclusory allegations do not suffice. Id. As Nichols is proceeding pro se, the Court construes his allegations liberally. Higgs v. Att'y Gen., 655 F.3d 333, 339 (3d Cir. 2011).


         Section 1983 of Title 42 of the United States Code provides in part:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

42 U.S.C. § 1983. “To state a claim under § 1983, a plaintiff must allege the violation of a right secured by the Constitution and laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law.” West v. Atkins, 487 U.S. 42, 48 (1988).

         A. Claims Involving Conditions of Confinement

         Nichols's original claims concerning the conditions of confinement at GWH were dismissed without prejudice because they failed to state a plausible claim under the Eighth Amendment - governing convicted inmates - or the Due Process Clause of the Fourteenth Amendment - governing claims brought ...

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