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Burk v. Crowe

United States District Court, E.D. Pennsylvania

January 3, 2020

ISHMAEL A. BURK, JR., Plaintiff,
JOAN CROWE, et al., Defendants.


          GERALD J. PAPPERT, J.

         Plaintiff 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.


         Burk 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, [1] where he was moved “after [he] was sentenced.” (Compl. ECF No. 2 at 2 & 10.) Burk raises claims based on several sets of allegations.

         First, 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.)

         Second, 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.)

         Third, 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. (Id.)

         Fourth, 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. (Id.)

         Fifth, 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. (Id.)

         In the 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.)


         The 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.[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. The Court construes Burk's allegations liberally. Higgs v. Att'y Gen., 655 F.3d 333, 339 (3d Cir. 2011).


         “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). “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)). ‚ÄúSecond, a supervisor may be ...

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