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Gillmore v. Lamas

United States District Court, E.D. Pennsylvania

December 12, 2019

MARSHALL GILLMORE, Plaintiff,
v.
MARIROSA LAMAS, et al., Defendants.

          MEMORANDUM

          C. DARNELL JONES, J.

         Plaintiff Marshall Gillmore, a prisoner incarcerated at SCI Chester, brings this pro se civil action pursuant to 42 U.S.C § 1983, against eleven prison officials primarily based on having been housed in a dry cell for a six-day period. He seeks to proceed in forma pauperis. For the following reasons, the Court will grant Gillmore leave to proceed in forma pauperis, dismiss certain of his claims, and permit him to proceed against six Defendants on claims related to the dry cell. The Court will also give Gillmore an opportunity to amend certain of the dismissed claims prior to directing service of his Complaint.

         I. FACTUAL ALLEGATIONS

         Gillmore primarily raises constitutional claims based on his placement in and the conditions of a dry cell where he was held for a period of approximately six days. He has named the following individuals as Defendants in their individual and official capacities: (1) Superintendent Marirosa Lamas; (2) Deputy Superintendent Kenneth Eason; (3) Security Captain Lorie Eason; (4) Lieutenant D. Friend; (5) Lieutenant B. Adams; (6) Lieutenant A. White; (7) Lieutenant K. Kaiser; (8) Lieutenant P. Bocco; (9) Sergeant C. Dunlap; (10) Grievance Coordinator M. Quinn; and (11) R.N. Green.

         Gillmore alleges that on August 4, 2019, two officers who are not named as Defendants searched him for contraband. It appears he was also strip-searched. Although the search did not yield any contraband, Gillmore was handcuffed and "transported to the X-Ray Body Scanner located in the Institution's Visiting Search area." (Compl. at 4, ¶ 14.) The Complaint suggests that Gillmore was x-rayed and that the x-ray did not reflect any contraband on him or inside of him. (Id.)

         Gillmore was then transported to Defendant Lorie Eason's office. (Id. at 4, ¶ 15.) Eason "insisted that [Gillmore] swallowed something" despite his denials and the search results, so she ordered that he be taken to a "dry cell" for observation.[1] (Id. at 5, ¶ 16.) Gillmore was forced to remove his clothing and surrender his belongings, and was given only a "paper thin" white smock to wear. (Id. at 5, ¶ 19.) At the direction of Defendant Friend, Gillmore was shackled and chained around the waist; the shackles dug into Gillmore's skin and the lock around Gillmore's waist caused him "excruciating pain. (Id. at 5-6, ¶ 20.) Gillmore's hands were also placed in a bag and zip-tied, and he was left in the fetal position, "unable to move because of the restraints he was placed in." (Id. at 5-6, ¶¶ 20-21.)

         Gillmore was held in the cell for approximately six days. (Id. at 5, ¶ 17; see also Id. at 7, ¶ 27.) He alleges that, during that time, the cell was "freezing cold" with cold air blowing on him, but also that there was "poor ventilation," he was given only a soiled mattress with no sheets, just a blanket, and the lights were constantly on, subjecting him to constant illumination. (Id. at 6, ¶¶ 23-24.) As is the case in a dry cell, see supra note 1, Gillmore alleges that the toilet and plumbing did not work, so he was required to urinate in a bottle and defecate in a pan, so officers could search his waste. (Id. at 6, ¶ 25.) He also was not provided with water to wash his hands, sanitizer, a shower, toothpaste, undergarments, or socks. (Id. at 6, ¶ 28.) Gillmore also generally alleges that during this time, Defendants White, Adams, Kaiser, Friend and Dunlap "all took turns and [participated] in torturing [him] with malicious, sadistic use of force." (Id. at 5, ¶ 17.) However, Gillmore also avers that Defendant Dunlap stated, "This procedure is not suppose[d] to be practiced in SCI-Chester, They're not suppose[d] to be doing this," and left him in the dry cell without taking any further action. (Id. at 7, ¶ 29.)

         Gillmore alleges that he complained of pain from the restraints. Defendant Adams allegedly dismissed his complaints and threatened to prevent Gillmore from moving for twenty-four hours if he continued to complain. (Id. at 7-8, ¶ 31.) Defendant Kaiser also allegedly prevented Gillmore from moving "at all." (Id. at 8, ¶ 33.) At some point during Gillmore's stay in the dry cell, Defendant Nurse Green observed his feet swelling from the shackles but did not provide any treatment and did not direct the officers to loosen the shackles. (Id. at 8, ¶ 34.) Gillmore alleges that no contraband was recovered during his stay in the dry cell or detected after a second x-ray body scan. (Id. at 8, ¶ 35.)

         On August 9, 2019, Gillmore was moved to the Restricted Housing Unit ("RHU") in the same smock he was given in the dry cell. (Id. at 8, ¶ 35.) He was held in solitary confinement even though he had not committed a disciplinary infraction. (Id.) On August 13, 2019, Nurse Green photographed Gillmore's hands and feet even though the swelling from the restraints had subsided. (Id. at 9, ¶ 36.) Gillmore also alleges that, while Defendant Bocco was "doing a tour," he told Bocco about "the pain and [trauma] he just experienced." (Id. at 9, ¶ 37.) Bocco allegedly responded that Gillmore was "our first victim" and laughed as though Gillmore's "hardship was a joking one." (Id.) Gillmore was released from the RHU on August 30, 2019. (Id. at 12, ¶ 48.)

         Thereafter, Gillmore discussed his experience with Defendant Kenneth Eason, who allegedly stated that he would look into the matter but failed to do so. (Id. at 10, ¶ 45.) Gillmore also filed a grievance while he was in the RHU based on the loss of his property and the conditions to which he had been subjected, but Defendant Quinn, the facility's grievance coordinator, only addressed the matter of Gillmore's property and denied his grievance. (Id. at 9-10, ¶¶ 40-41; see also Id. at 11, ¶¶ 46-47.) Gillmore refiled his grievance upon his release from the RHU, which he alleges he was entitled to do under DOC policy. (Id. at 12, ¶ 48.) However, Lamas mistakenly construed his refiled grievance as an appeal; Gillmore also alleges that Lamas "failed to react" to the issues he presented in his grievance or to respond to his complaints. (Id. at 12, ¶ 49; see also Id. at 9-10, ¶ 41.)

         Gillmore alleges that he suffered trauma, humiliation, depression, confusion, pain at the point of the restraints, and continues to suffer from numbness in his thumbs. He also experienced psychological problems and was prescribed medication as a result. (Id. at 10, ¶ 43.) Gillmore also claims he was subjected to retaliation based on an allegation that his cell was "searched multiple times" between August 30, 2019 and September 30, 2019, and his "grievance documents [were] stolen." (Id. at 12, ¶ 50.) Gillmore seeks compensatory and punitive damages.

         II. STANDARD OF REVIEW

         The Court grants Gillmore leave to proceed in forma pauperis because it appears that he is incapable of paying the fees to commence this civil action.[2] Accordingly, 28 U.S.C. §1915 (e)(2)(B)(ii) applies, which requires the Court to dismiss the Complaint if it 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 Gillmore is proceeding pro se, the Court construes his allegations liberally. Higgs v. Att 'y Gen., 655 F.3d 333, 339 (3d Cir. 2011).

         III. DISCUSSION

         The Court understands Gillmore to be raising constitutional claims pursuant to § 1983 based on his placement in the dry cell, the conditions of the dry cell, the manner in which he was restrained, the denial of medical care while he was in the dry cell, his placement in the RHU, the failure of certain Defendants to respond to his plight, the responses to his grievances, and the searches of his cell on an allegedly retaliatory basis. "To state a claim under § 1983, a plaintiff must allege the violation of a right secured by the Constitution 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 defendant in a civil rights action must have personal involvement in the alleged wrongs" for liability to attach under § 1983. See Rode v. Dellarciprete,845 F.2d 1195, 1207 (3d Cir. 1988); see also Iqbal, 556 U.S. at 676 (explaining that, "[b]ecause ...


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