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Burk v. Budd

United States District Court, E.D. Pennsylvania

August 9, 2019

ISHMAEL ALI BURK, JR., Plaintiff,
v.
MISS BUDD, et al., Defendants.

          MEMORANDUM

          PAPPERT, J.

         Pro se plaintiff Ishmael Burk sued Bucks County Correctional Facility, Lillian Budd, Michael Gallagher, Paul Lagana, Kelvin Prince, and two John Does for violating his rights under 42 U.S.C. § 1983. The Court dismissed all claims against Bucks County Correctional Facility as legally baseless. See (Order, ECF No. 10). The remaining named Defendants moved to dismiss all claims against them for failure to state a claim. The Court grants in part and denies in part the Defendants' Motions for the reasons that follow.

         I

         Burk was incarcerated at BCCF from June 26, 2017 to February 2018. See (Sec. Am. Compl. ¶ 7, ECF No. 42). He alleges that Correctional Officers Prince and Bombay[1] and Warden Lagana subjected him to strip searches at least three times a week as retaliation for his criminal case involving a police officer. (Id. at ¶¶ 1, 10.) He claims that Bombay “said that he seen my case on TV and I will be living through hell while I am in BCCF, ” and “this is for the officers you hurt.” (Id. at ¶ 2.) Burk alleges that the officers sexually abused him during those searches. He claims that Officer Bombay “grabbed his butt” and inserted his fingers in Burk's rectum. (Id.) Burk asked Bombay to stop but Bombay allegedly said that if Burk told anyone he would make it more hurtful for Burk. (Id.) Burk claims that because of these searches he still bleeds from his rectum when he uses the bathroom. (Id. at ¶ 9.)

         Burk informed Assistant Warden Budd and Gallagher about the strip searches and “lack of showers I was getting.” (Id. at ¶¶ 4-5.) He alleges that “Miss Budd would make trips to the RHU Unit . . . so I told her face to face what was going on I told her why I think I was being abused and harassed because of my criminal case.” (Id. at ¶ 4.) Budd told him to write to her with his complaints. (Id.) Burk wrote to her on multiple occasions, but Budd said that he was “late in telling her what [happened].” (Id.) Burk also wrote to Gallagher about “the abuse & lack of shower & about the lack of medical attention, ” but Burk never heard from Gallagher. (Id. at ¶ 5.)

         Burk filed his Complaint on October 31, 2018, (ECF No. 2), and amended it on January 8, 2019, (ECF No. 9). On March 6 and March 29, 2019, Defendants moved to dismiss Burk's Amended Complaint. (ECF Nos. 27 and 31.) Burk then moved to file a Second Amended Complaint. See (ECF Nos. 32, 33, 34, and 39). Along with his Motions, Burk sent numerous letters to the Court, including new factual allegations not contained in his Amended Complaint. The Court granted Burk's request for leave to file a Second Amended Complaint on May 2, 2019 and instructed Burk to include all factual allegations therein. (ECF No. 41.) Burk filed a Second Amended Complaint on May 15, 2019, (ECF No. 42), and the Court denied the pending motions to dismiss as moot. (ECF No. 44.) Defendants moved to dismiss his Second Amended Complaint on May 29, 2019. (ECF Nos. 45 and 46.)

         II

         A

         To survive dismissal under Rule 12(b)(6) of the Federal Rules of Civil Procedure, the complaint “must contain 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) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is facially plausible when the facts pled “allow[ ] the court to draw the reasonable inference that [a] defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. “[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not ‘show[n]'-‘that the pleader is entitled to relief.'” Id. at 679 (quoting Fed.R.Civ.P. 8(a)(2)).

         When the complaint includes well-pleaded factual allegations, the Court “should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.” See Connelly v. Lane Const. Corp., 809 F.3d 780, 787 (3d Cir. 2016) (quoting Iqbal, 556 U.S. at 679). However, this “presumption of truth attaches only to those allegations for which there is sufficient factual matter to render them plausible on their face.” Schuchardt v. President of the U.S., 839 F.3d 336, 347 (3d Cir. 2016) (internal quotation and citation omitted). This plausibility determination is a “context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id. (quoting Connelly, 809 F.3d at 786-87).

         B

         Because Burk is proceeding pro se, the Court “must liberally construe his pleadings.” Dluhos v. Strasberg, 321 F.3d 365, 369 (3d Cir. 2003) (citation omitted). “Courts are to construe complaints so ‘as to do substantial justice,' keeping in mind that pro se complaints in particular should be construed liberally.” Bush v. City of Phila., 367 F.Supp. 722, 725 (E.D. Pa. 2005) (quoting Alston v. Parker, 363 F.3d 229, 234 (3d Cir. 2004)). Moreover, in a § 1983 action, the Court must “apply the applicable law, irrespective of whether a pro se litigant has mentioned it by name.” Higgins v. Beyer, 293 F.3d 683, 688 (3d Cir. 2002) (quoting Holley v. Dep't of Veteran Affairs, 165 F.3d 244, 247-48 (3d Cir. 1999)); see also Nami v. Fauver, 82 F.3d 63, 65 (3d Cir. 1996) (“Since this is a § 1983 action, the [pro se] plaintiffs are entitled to relief if their complaint sufficiently alleges deprivation of any right secured by the Constitution.”). At the same time, pro se litigants “must allege sufficient facts in their complaints to support a claim . . . At the end of the day, 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).

         III

         Defendants first argue that Burk failed to exhaust his administrative remedies. Under the Prison Litigation Reform Act of 1996 (the “PLRA”), a prisoner is required to pursue all avenues of relief available within the prison's grievance system before bringing a federal civil rights action concerning prison conditions. See 42 U.S.C. § 1997e(a). This “exhaustion requirement applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong.” Porter v. Nussle, 534 U.S. 516, 532 (2002). A prisoner exhausts his administrative remedies if he complies with the grievance procedures and rules. See Spruill v. Gillis, 372 F.3d 218, 231 (3d Cir. 2004). The PLRA ...


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