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Kelly v. Wolf

United States District Court, E.D. Pennsylvania

September 26, 2019

JOHNNIE O. KELLY, Plaintiff,
TOM WOLF, PA GOVERNOR, et al., Defendants



         Pro 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.[1] 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 prejudice.

         I. FACTS

         In the 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. (Id.)


         As the 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).


         The 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 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).

         Governor 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 citations omitted)).

         To the 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 ...

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