United States District Court, E.D. Pennsylvania
JOHNNIE O. KELLY, Plaintiff,
TOM WOLF, PA GOVERNOR, et al., Defendants
QUIÑONES ALEJANDRO, J.
se Plaintiff Johnnie O. Kelly, a pretrial detainee
confined at Curran Fromhold Correctional Facility
(“CFCF”), originally filed this civil rights
action on April 22, 2019. In a prior Memorandum and Order
dated May 13, 2019 (ECF Nos. 5, 6), Kelly was granted leave
to proceed in forma pauperis and the Complaint was
dismissed without prejudice pursuant to 28 U.S.C. §
1915(e)(2)(B)(ii) for failure to state plausible claims
against the named Defendants. Kelly was granted leave to file
an amended complaint if he was able to cure the defects noted
by the Court in his original pleading. Kelly filed his
Amended Complaint (“AC”) on September 12, 2019.
(ECF No. 11.) Because the AC also attempts to state claims
that are implausible and it appears that any further attempt
at amendment would be futile, the AC will be dismissed with
conclusion of the Court’s prior Memorandum, Kelly was
informed that, if he decided to file an amended complaint, he
should include as much detail as possible describing how he
was harmed and how each Defendant he names in the amended
complaint was responsible for that alleged harm. (ECF No. 5
at 4.) Kelly has, unfortunately, failed to heed this
instruction. He essentially reasserts the same allegations he
included in the first iteration of his Complaint, which the
Court has already found implausible. Specifically, he names
Governor Tom Wolf, Commissioner Blanche Carney and Warden
John Delaney as Defendants, and describes conditions at CFCF
including being housed in a multipurpose room without
electronic locks, proper ventilation and natural sunlight,
having to eat his meals near a toilet, and being exposed to
fluorescent lighting for 16 hours each day. (ECF No. 11 at
2.) As in his initial Complaint, Kelly again alleges that the
upper bunks are too high, and that his eyesight has worsened.
STANDARD OF REVIEW
Court previously granted Kelly 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 a complaint
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
complaint 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 Kelly is proceeding pro se,
the Court construes his allegations liberally. Higgs v.
Att’y Gen., 655 F.3d 333, 339 (3d Cir. 2011).
vehicle by which federal constitutional claims may be brought
in federal court is Section 1983 of Title 42 of the United
States Code, that 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
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).
Wolf is dismissed with prejudice because Kelly again fails to
allege any actual claim against him. To the extent that Kelly
sues Governor Wolf in his individual capacity, he makes no
allegation that Wolf was personally involved in the
operations at CFCF, an institution operated by the City of
Philadelphia, as opposed to the Commonwealth of Pennsylvania.
Kelly’s only allegation about Governor Wolf is that he,
in his capacity as guardian of STATE, by Law was appointed to
the affairs of State, which dictated, orders that must be
carried out and obeyed. Any Person or People are entitled to
protection, & from harm, be it physical or mental, in
society, institution, etc. . .
(ECF No. 11 at 1 (capitalization in original).) This
allegation fails to set forth any facts demonstrating that
Wolf was aware of the alleged conditions, or that he acted
with deliberate indifference to Kelly’s health or
safety. See Wilson v. Seiter, 501 U.S. 295, 298-99
(1991); see also Wilson v. Burks, 423 F.
App’x 169, 173 (3d Cir. 2011) (per curiam)
(“‘[T]he official must both be aware of facts
from which the inference could be drawn that a substantial
harm exists, and he must also draw that
inference.’”) (quoting Farmer, 511 U.S.
at 837); cf. Edwards v. Northampton Cty., 663 F.
App’x 132, 135 (3d Cir. 2016) (per curiam)
(“[W]e agree with the District Court and find no reason
to apply a different standard here as we have applied the
‘deliberate indifference’ standard both in cases
involving prisoners and pretrial detainees.” (internal
extent this averment attempts to assert an official capacity
claim against Wolf based on his being the Governor, that
claim must also fail. The Eleventh Amendment bars suits
against a state and its agencies in federal court that seek
monetary damages. See Pennhurst State Sch. And Hosp. v.
Halderman, 465 U.S. 89, 99-100 (1984); A.W. v.
Jersey City Public Schs., 341 F.3d 234, 238 (3d Cir.
2003). A suit against the Governor acting in his official
capacity is really a suit against the Commonwealth and as
such, is also barred by the Eleventh Amendment.
A.W., 341 F.3d at 238; see also Hafer v.
Melo, 502 U.S. 21, 25 (1991); Will v. Mich.
Dep’t of State Police, 491 U.S. 58, 70-71 (1989).
As the Commonwealth has not waived its Eleventh Amendment