United States District Court, E.D. Pennsylvania
ISHMAEL A. BURK, JR., Plaintiff,
JOAN CROWE, et al., Defendants.
J. PAPPERT, J.
Ishmael A. Burk, Jr., a prisoner incarcerated at
SCI-Smithfield, brings this pro se civil action
pursuant to 42 U.S.C. § 1983, raising constitutional
claims based on his recent imprisonment at the Bucks County
Correctional Facility. He seeks to proceed in forma
pauperis. For the following reasons, the Court will
grant Burk leave to proceed in forma pauperis,
dismiss certain of his claims, and permit him to proceed on
other claims. The Court will also give Burk an opportunity to
file an amended complaint prior to directing service.
brings this case against the following Defendants, all of
whom appear to be employed at the Bucks County Correctional
Facility: (1) Joan Crowe; (2) Dr. Cassidy; (3) Lillian Budd;
(4) Paul Lagana; and (5) two John Doe correctional officers.
Burk alleges that the events giving rise to his claims
occurred between January and March 2018, during his
incarceration in the RHU and MHU,  where he was moved
“after [he] was sentenced.” (Compl. ECF No. 2 at
2 & 10.) Burk raises claims based on several sets of
Burk alleges that Dr. Cassidy switched his medication from
Lexipro to Zyprexa, which caused him to throw up “all
the time” and made his depression intolerable.
(Id. at 10.) Burk alleges that he wrote to Dr.
Cassidy, Budd, Crowe and Lagana “telling all what was
happening” and that he also submitted a grievance, but
nothing happened. (Id.) By the end of January 2018,
Burk wrote to Dr. Cassidy to inform her that he would not be
taking his medication anymore because it worsened his
depression. (Id.) He also alleges that he wrote to
her several times regarding his medication and told her his
depression was getting worse. (Id. at 10-11.)
Burk alleges that when he refused to take his medication, the
two John Doe correctional officers would restrain him and
force him to take his medication. (Id. at 10.) He
also alleges that the officers turned his water off for
twenty days because he refused to take his medication, and
that they threatened not to feed him if the behavior
continued. (Id.) Burk contends that the John Doe
officers then “skip[ped] his door” at meal time,
although it is not clear how many meals Burk did not receive.
(Id.) According to Burk, “when this
happen[ed]” he wrote to Crowe, Dr. Cassidy, Budd, and
Lagana but did not receive a response. (Id.)
Burk alleges that he fell off his bed after taking his
medication, injuring his right arm, and wrote to Crowe
apparently asking to be seen for medical treatment.
(Id. at 11.) Burk contends that he was
“refused medical by them” but does not allege
anyone else was involved in matters related to his arm or
clarify this allegation. (Id.) Burk also alleges
that he still experiences discomfort in his arm.
Burk challenges his placement in the “MHU/RHU with no
hearing at all and no type of explanation.”
(Id.) He contends that when Lagana and Budd made
rounds on those units, he would inquire as to why he was not
on a regular block, but he did not receive an answer.
Burk challenges the conditions in the MHU/RHU. He claims that
the cell he was housed in for three months smelled of urine,
that no one cleaned the cell during that time, and that he
contracted an infection that caused scabs on his leg.
(Id.) He also alleges that when “the
guards” would take him to see his attorney, he would
ask to “go to medical” but they denied his
request. (Id.) Burk also alleges that he was denied
phone calls to his family; it appears he wrote to Budd and
Lagana about the phone calls but did not receive a response.
section of the form complaint used by Burk that asks for
information about injuries, Burk indicates that his right
rotator cuff, foot, and “big toe” remain injured,
although he does not raise any factual allegations that
relate to his foot or toe. (Id. at 3.) He seeks
damages in the amount of $80, 000. (Id. at 5.)
Court grants Burk leave to proceed in forma pauperis
because it appears that he is incapable of paying the fees to
commence this civil action. 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. The Court construes
Burk's allegations liberally. Higgs v. Att'y
Gen., 655 F.3d 333, 339 (3d Cir. 2011).
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 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). There
are “two general ways in which a supervisor-defendant
may be liable for unconstitutional acts undertaken by
subordinates.” Barkes v. First Corr. Med.,
Inc., 766 F.3d 307, 316 (3d Cir. 2014), reversed on
other grounds by Taylor v. Barkes, 135 S.Ct. 2042
(2015). First, a supervisor may be liable if he or she
“with deliberate indifference to the consequences,
established and maintained a policy, practice or custom which
directly caused [the] constitutional harm.”
Id. (quoting A.M. ex rel. J.M.K. v. Luzerne Cty.
Juvenile Det. Ctr., 372 F.3d 572, 586 (3d Cir. 2004)
(alteration in original)). “Second, a supervisor may be