SUSAN E. SCHWAB, Chief Magistrate Judge.
The plaintiff, Roberto Camacho, claims that the defendants violated his constitutional rights by using excessive force on him, by denying him needed medical care, and by retaliating against him. Five of the six defendants have moved to dismiss the complaint. For the reasons discussed below, we recommend that the Court grant in part and deny in part their motion to dismiss the complaint. We also recommend that the Court grant Camacho leave to file an amended complaint.
Camacho names the following individuals as defendants: (1) R.L. Dean, a kitchen steward; (2) Mr. Hoover, a kitchen steward; (3) Mr. Parks, a kitchen supervisor; (4) Mr. Cook, a unit manager; (5) Paula C. Price, a corrections health care administrator; and (6) Tabb Bickell, the former Superintendent at SCI-Huntingdon.
Camacho alleges that in October of 2012, while he was working in the kitchen at SCI-Huntingdon, defendant Dean, suddenly and without warning, slammed the lid to a pot down on his left arm. Camacho had recently had surgery on his left arm, and, according to Camacho, because Dean slammed the lid on his arm, his sutures burst and his surgical wound opened. Although blood was flowing from the wound and visibly soaking the bandages that Camacho had on, defendants Dean and Hoover refused Camacho's request for permission to go to the medical department for treatment. As a result, Camacho went without medical treatment for the reopened surgical wound for about an hour, during which time he suffered additional loss of blood.
After Camacho filed a grievance about Dean's actions, Dean allegedly threatened Camacho and verbally harassed him. Also, according to Camacho, on several occasions when conducting pat searches, Dean forcibly struck Camacho in the testicles by running his fist up the inside of Camacho's leg, which Camacho characterizes as sexual abuse. Although Camacho was afraid to file another grievance against Dean, he verbally reported the purported sexual abuse to defendant Parks. Later, defendant Cook interviewed Camacho about the incident. According to Camacho, neither Parks nor Cook made the notifications required by DC-ADM 001. Instead of reporting Camacho's allegations of abuse, they scheduled Camacho to work on a different shift from Dean, which, Camacho contends, served to conceal Dean's abusive behavior, to communicate to Dean that Parks and Cooks condoned such behavior, and to enable Dean to continue to abuse and intimidate Camacho.
Camacho alleges that, after Dean's assault with the pot lid, his arm did not heal properly, and he suffered additional pain, tingling, and numbness. An outside specialist as well as contract medical staff at SCI-Huntingdon recommended that he have further surgery. He needed defendant Price's approval for that surgery, but Price refused to approve the surgery for approximately 19 months. According to Camacho, Price denied approval for the surgery for nonmedical reasons: (1) to conceal Dean's assault; (2) to conceal Parks and Cook's acquiescence in abusive behavior toward prisoners by kitchen staff; (3) to deprive him of documentation of his injuries; (4) to curry favor with contract administrators; or (5) for other improper or nonmedical reasons. Because of the delay in receiving the surgery, Camacho's injury did not heal properly, and he has permanently lost some function and use of his left hand, which is his dominant hand.
Camacho alleges that defendant Bickell rebuffed his request to speak to him about the continuing abuse he suffered and his need for further surgery even though Bickell routinely talks with prisoners who approach him about a wide range of concerns. According to Camacho, prior to Dean's assault with the pot lid, Bickell had received verbal and written reports that Dean had inflicted similar abuse on other prisoners. He covered up those reports by failing to order an investigation as required by DC-ADM 001 or by failing to refer the reports to the Office of Special Investigations and Intelligence. Camacho contends that through those reports, and in other ways, Bickell was aware of Dean's pattern of abuse and predatory behavior toward prisoners assigned to work in the kitchen. But despite knowing of Dean's proclivity for cruelty and abuse and his non-compliance with Department of Corrections' policy, Bickell allowed Dean to remain in a position of authority over prisoners.
According to Camacho, by failing to insist on compliance with DC-ADM 001 by staff, including Dean, Parks, and Cook, Bickell tolerated, condoned, encouraged, and acquiesced in a practice of enabling abuse of prisoners who worked in the kitchen through juggling of work assignments. Further, Camacho alleges that Bickell communicated his tolerance for and acquiescence in the abuse of kitchen workers by refusing to discipline Dean or remove him from a position of authority over prisoners. And, Camacho contends, as Superintendent, Bickell was responsible for training and supervising staff at SCI-Huntingdon, but he failed to adequately train and supervise his staff, including Dean, Parks, and Cook, to ensure that they understood and complied with DC-ADM 001, the policy on reporting abuse. According to Camacho, that failure to train and supervise was a cause of (1) Dean's assault on him with the pot lid; (2) Dean's continuing retaliatory abuse and intimidation of him after he filed a grievance about the initial assault; and (3) Dean's "sexual assaults" and intimidation of him to keep him from filing further grievances.
Camacho also alleges that Bickell failed to train and supervise his staff, including Dean and Hoover, to ensure that they understood and complied with the policy of the Department of Corrections (DOC) on responding to medical emergencies, and as a result, Dean and Hoover denied him medical assistance after Dean ripped open his surgical wound. Similarly, Camacho alleges that Bickell failed to train and supervise Price concerning the DOC policy on health care for prisoners and her responsibilities to manage the provision of health care by contractors according to the terms of the contract entered into by the DOC, and as a result, Price refused to arrange the medically necessary surgery for Camacho for approximately 19 months.
In July of 2014, Camacho underwent reparative surgery at SCI-Pittsburgh, but, Camacho alleges, he did not receive appropriate post-surgical care at SCI-Pittsburgh and officers there abused him causing further injury to his arm.
The complaint contains four counts. Count I contains Eighth Amendment claims of excessive force against defendant Dean. Count II contains Eighth Amendment medical claims against defendants Parks, Hoover, and Price. Count III contains First Amendment retaliation claims against defendant Dean. And Count IV contains failure to supervise claims under the First and Eighth Amendments against defendants Parks, Cook, and Bickell. Camacho seeks compensatory and punitive damages as well as declaratory relief and injunctive relief in the form of an order for adequate medical care.
Defendants Parks, Hoover, Price, Cook, and Bickell filed a motion to dismiss the claims in the complaint against them and a brief in support of that motion.
In accordance with Fed.R.Civ.P. 12(b)(6), the court may dismiss a complaint for "failure to state a claim upon which relief can be granted." When reviewing a motion to dismiss, "[w]e must accept all factual allegations in the complaint as true, construe the complaint in the light favorable to the plaintiff, and ultimately determine whether plaintiff may be entitled to relief under any reasonable reading of the complaint." Mayer v. Belichick, 605 F.3d 223, 229 (3d Cir. 2010). In making that determination, we "consider only the complaint, exhibits attached to the complaint, matters of public record, as well as undisputedly authentic documents if the [plaintiff's] claims are based upon these documents." Id. at 230.
"A Rule 12(b)(6) motion tests the sufficiency of the complaint against the pleading requirements of Rule 8(a)." I.H. ex rel. D.S. v. Cumberland Valley Sch. Dist., 842 F.Supp.2d 762, 769-70 (M.D. Pa. 2012). "Under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain a `short and plain statement of the claim showing that the pleader is entitled to relief.'" Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009). The statement required by Rule 8(a)(2) must give the defendant fair notice of what the plaintiff's claim is and of the grounds upon which it rests. Erickson v. Pardus, 551 U.S. 89, 93 (2007). Detailed factual allegations are not required, but more is required than labels, conclusions, and a formulaic recitation of the elements of a cause of action. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). "In other words, a complaint must do more than allege the plaintiff's entitlement to relief." Fowler v. UPMC Shadyside, 578 F.3d 203, 211 (3d Cir. 2009). "A complaint has to "show" such an entitlement with its facts." Id.
In considering whether a complaint fails to state a claim upon which relief can be granted, the court must accept as true all well-pleaded factual allegations in the complaint, and all reasonable inferences that can be drawn from the complaint must be construed in the light most favorable to the plaintiff. Jordan v. Fox Rothschild, O'Brien & Frankel, Inc., 20 F.3d 1250, 1261 (3d Cir. 1994). But a court "need not credit a complaint's bald assertions or legal conclusions when deciding a motion to dismiss." Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997). Additionally, a court need not "assume that a . . . plaintiff can prove facts that the . . . plaintiff has not alleged." Associated Gen. Contractors of Cal. v. California State Council of Carpenters, 459 U.S. 519, 526 (1983).
Following Twombly and Iqbal, a well-pleaded complaint must contain more than mere legal labels and conclusions. Rather, it must recite factual allegations sufficient to raise the plaintiff's claimed right to relief beyond the level of mere speculation. In practice, consideration of the legal sufficiency of a complaint entails a three-step analysis:
Santiago v. Warminster Tp., 629 F.3d 121, 130 (3d Cir. 2010) (quoting Iqbal, 556 U.S. at 675 & 679).
The moving defendants contend that the complaint fails to state a 42 U.S.C. § 1983 claim upon which relief can be granted against them. "Section 1983 imposes civil liability upon any person who, acting under the color of state law, deprives another individual of any rights, privileges, or immunities secured by the Constitution or laws of the United States." Shuman v. Penn Manor School Dist., 422 F.3d 141, 146 (3d Cir. 2005). To establish a § 1983 claim, the plaintiff must establish a deprivation of a federally protected right and that a person acting under color of state law committed this deprivation. Woloszyn v. County of Lawrence, 396 F.3d 314, 319 (3d Cir. 2005). Section 1983 "does not create any new substantive rights but instead provides a remedy for the violation of a federal constitutional or statutory right." Shuman, 422 F.3d at 146. Here, the substantive rights at issue are a prisoner's Eighth Amendment right to be free from cruel and unusual punishment and the First Amendment right to be free from retaliation. The Eighth Amendment is applicable to the States through the Fourteenth Amendment. Estelle v. Gamble, 429 U.S. 97, 101 (1976). As is the First Amendment. Packingham v. North Carolina, No. 15-1194, 2017 WL 2621313, at *3 (U.S. June 19, 2017).
Count II of the complaint contains Eighth Amendment medical claims against defendants Parks, Hoover, and Price. These defendants contend that the complaint fails to state Eighth Amendment medical claims against them upon which relief can be granted because Camacho fails to allege facts showing that they were deliberately indifferent to his serious medical needs.
"An inmate must rely on prison authorities to treat his medical needs; if the authorities fail to do so, those needs will not be met." Estelle v. Gamble, 429 U.S. 97, 103 (1976). In order for a plaintiff to allege a viable Eighth Amendment medical claim, he must allege facts from which we can reasonably infer that the defendant acted with deliberate indifference to his serious medical needs. Id. at 104; see also Groman v. Township of Manalapan, 47 F.3d 628, 637 (3d Cir. 1995) ("Failure to provide medical care to a person in custody can rise to the level of a constitutional violation under § 1983 only if that failure rises to the level of deliberate indifference to that person's serious medical needs."). This is a two-part inquiry: "a plaintiff must make (1) a subjective showing that `the defendants were deliberately indifferent to [his or her] medical needs' and (2) an objective showing that `those needs were serious.'" Pearson v. Prison Health Serv., 850 F.3d 526, 534 (3d Cir. 2017) (quoting Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir. 1999)).
A medical need is serious if it "has been diagnosed by a physician as requiring treatment" or if it "is so obvious that a lay person would easily recognize the necessity for a doctor's attention." Monmouth Cnty. Corr. Institutional Inmates v. Lanzaro, 834 F.2d 326, 347 (3d Cir. 1987) (quoting Pace v. Fauver, 479 F.Supp. 456, 458 (D.N.J. 1979), aff'd, 649 F.2d 860 (3d Cir. 1981) (table)). Additionally, "if `unnecessary and wanton infliction of pain' results as a consequence of denial or delay in the provision of adequate medical care, the medical need is of the serious nature contemplated by the eighth amendment." Id. (quoting Estelle, 429 U.S. at 103). Further, "where denial or delay causes an inmate to suffer a life-long handicap or permanent loss, the medical need is considered serious." Id.
Deliberate indifference is a subjective standard. Farmer v. Brennan, 511 U.S. 825, 840 (1994). "To act with deliberate indifference to serious medical needs is to recklessly disregard a substantial risk of serious harm." Giles v. Kearney, 571 F.3d 318, 330 (3d Cir. 2009). To act with deliberate indifference, the prison official must have known of the substantial risk of serious harm and must have disregarded that risk by failing to take reasonable measures to abate it. Farmer, 511 U.S. at 837. "[T]he official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference." Id.
The mere misdiagnosis of a condition or medical need, or negligent treatment provided for a condition, is not actionable as a constitutional claim because medical malpractice is not a constitutional violation. See Farmer, 511 U.S. at 835 (holding that "deliberate indifference describes a state of mind more blameworthy than negligence"); Spruill v. Gillis, 372 F.3d 218, 235 (3d Cir. 2004) ("Allegations of medical malpractice are not sufficient to establish a Constitutional violation."); Singletary v. Pa. Dep't of Corr., 266 F.3d 186, 192 n. 2 (3d Cir. 2002) (claims of medical malpractice, absent evidence of a culpable state of mind, do not constitute deliberate indifference under the Eighth Amendment). Instead, deliberate indifference represents a much higher standard, one that requires "obduracy and wantonness, which has been likened to conduct that includes recklessness or a conscious disregard of a serious risk." Rouse, 182 F.3d at 197 (quoting Whitley v. Albers, 475 U.S. 312, 319 (1986)).
"Indeed, prison authorities are accorded considerable latitude in the diagnosis and treatment of prisoners." Durmer v. O'Carroll, 991 F.2d 64, 67 (3d Cir. 1993) (citations omitted). And courts will "disavow any attempt to second guess the propriety or adequacy of a particular course of treatment . . . [which] remains a question of sound professional judgment." Palakovic v. Wetzel, 854 F.3d 209, 228 (3d Cir. 2017) (quoting Inmates of Allegheny County Jail v. Pierce, 612 F.2d 754, 762 (3d Cir. 1979)). "Mere disagreement as to the proper medical treatment does not support an Eighth Amendment claim." Caldwell v. Luzerne Cnty. Corr. Facility Mgmt. Employees, 732 F.Supp.2d 458, 472 (M.D. Pa. 2010).
The Third Circuit has found deliberate indifference where a prison official: "(1) knows of a prisoner's need for medical treatment but intentionally refuses to provide it; (2) delays necessary medical treatment based on a non-medical reason; or (3) prevents a prisoner from receiving needed or recommended medical treatment." Rouse, 182 F.3d at 197. The Third Circuit has also held that "[n]eedless suffering resulting from the denial of simple medical care, which does not serve any penological purpose, . . . violates the Eighth Amendment." Atkinson v. Taylor, 316 F.3d 257, 266 (3d Cir. 2003). "For instance, prison officials may not, with deliberate indifference to the serious medical needs of the inmate, opt for `an easier and less efficacious treatment' of the inmate's condition." Palakovic, 854 F.3d at 228 (quoting West v. Keve, 571 F.2d 158, 162 (3d Cir. 1978)). "Nor may `prison authorities deny reasonable requests for medical treatment . . . [when] such denial exposes the inmate to undue suffering or the threat of tangible residual injury.'" Id. (quoting Monmouth Cnty. Corr. Institutional Inmates, 834 F.2d at 346). Thus, "[a] `failure to provide adequate care . . . [that] was deliberate, and motivated by non-medical factors' is actionable under the Eighth Amendment, but `inadequate care [that] was a result of an error in medical judgment' is not." Parkell v. Danberg, 833 F.3d 313, 337 (3d Cir. 2016) (quoting Durmer, 991 F.2d at 69).
"Where a prisoner has received some amount of medical treatment, it is difficult to establish deliberate indifference, because prison officials are afforded considerable latitude in the diagnosis and treatment of prisoners." Palakovic, 854 F.3d at 227. "Nonetheless, there are circumstances in which some care is provided yet it is insufficient to satisfy constitutional requirements." Id. at 228. "[T]here is a critical distinction `between cases where the complaint alleges a complete denial of medical care and those alleging inadequate medical treatment.'" Pearson, 850 F.3d at 535 (quoting United States ex. rel. Walker v. Fayette Cty., 599 F.2d 573, 575 n.2 (3d Cir. 1979)). "Because `mere disagreement as to the proper medical treatment' does not `support a claim of an eighth amendment violation,' when medical care is provided, we presume that the treatment of a prisoner is proper absent evidence that it violates professional standards of care." Id. (quoting Monmouth Cty. Corr. Inst., 834 F.2d at 346). And "there are two very distinct subcomponents to the deliberate indifference prong of an adequacy of care claim." Id. at 536. "The first is the adequacy of the medical care—an objective inquiry where expert testimony could be helpful to the jury." Id. "The second is the individual defendant's state of mind—a subjective inquiry that can be proven circumstantially without expert testimony." Id. But a claim that medical care was delayed or denied completely "must be approached differently than an adequacy of care claim." Id. at 537. "Unlike the deliberate indifference prong of an adequacy of care claim (which involves both an objective and subjective inquiry), the deliberate indifference prong of a delay or denial of medical treatment claim involves only one subjective inquiry—since there is no presumption that the defendant acted properly, it lacks the objective, propriety of medical treatment, prong of an adequacy of care claim." Id. "All that is needed is for the surrounding circumstances to be sufficient to permit a reasonable jury to find that the delay or denial was motivated by non-medical factors." Id.
Further, a nonmedical prison official is not deliberately indifferent simply because he or she failed to respond to a prisoner's medical complaints when a doctor was already treating the prisoner. Durmer, 991 F.2d at 69. "Absent a reason to believe (or actual knowledge) that prison doctors or their assistants are mistreating (or not treating) a prisoner, a non-medical prison official . . . will not be chargeable with the Eighth Amendment scienter requirement of deliberate indifference." Spruill, 372 F.3d at 236. "[T]he same division of labor concerns that underlie that rule apply when a nurse knows that a prisoner is under a physician's care and has no reason to believe that the doctor is mistreating the prisoner." Pearson, 850 F.3d at 540 n.4. "Given that it is the physician with the ultimate authority to diagnose and prescribe treatment for the prisoner, a nurse who knows that the prisoner is under a physician's care is certainly `justified in believing that the prisoner is in capable hands,' id. so long as the nurse has no discernable basis to question the physician's medical judgment." Id. (quoting Spruill, 372 F.3d at 236).
Here, defendants Parks, Hoover, and Price contend that Camacho failed to sufficiently allege deliberate indifference on their part because as non-medical personnel they were entitled to defer to the medical judgment of staff physicians, and, they contend, we can infer that Camacho was under the care of staff physicians because he recently underwent surgery and had sutures and bandages on his arm. They also highlight that Camacho alleges that medical staff and an outside specialist recommended further surgery. Thus, they contend that Camacho has not alleged that they had actual knowledge or even a reason to believe that he was not receiving proper medical care from medical professionals at the prison, and, as such, they cannot be seen as deliberately indifferent.
Camacho's claim against defendant Hoover is that Hoover refused to allow him to seek medical treatment when his sutures ruptured and he was bleeding. Camacho alleges that Hoover was working in the kitchen when Dean slammed the pot lid on his arm, causing his surgical wound to reopen. According to DOC policy, Camacho needed permission to leave the kitchen, but Hoover refused his request for permission to go to the medical department. There is nothing in the complaint from which we can reasonably infer that, at that point, Camacho was under the care of medical professionals for the immediate injury of his surgical wound reopening. That he was under the care of medical professionals in connection with his earlier surgery is beside the point. And so, Hoover's contention that he cannot be seen as deliberately indifferent because Camacho was under the care of medical professionals is without merit.
Hoover also contends that because Camacho alleges that he prohibited him from going to the infirmary only for about an hour after the sutures ruptured, he cannot be seen as deliberately indifferent. Hoover emphasizes that Camacho does not allege that he indefinitely prevented him from receiving treatment, that he never received treatment, or that the treatment he eventually received was substandard. And, Hoover contends, Camacho is not entitled to "immediate, on-demand medical treatment for a minor injury by the Constitution in the same way that a non-incarcerated individual is not entitled to skip the queue at an emergency room, where significant wait times for treatment are the norm." Doc. 146 at 7.
The length of time that Hoover refused Camacho permission to seek medical treatment is an important factor in whether Hoover was deliberately indifferent. But Camacho alleges that Hoover refused to allow him even to seek medical attention after his sutures ruptured and he was bleeding, and he alleges that he was bleeding to such an extent that his bandages were visibly soaked with blood. At the pleading stage of the proceedings, we cannot accept Hoover's characterization of Camacho's injury as minor. Camacho may or may not be able to prove that Hoover knew that he faced a substantial risk of serious harm when his sutures ruptured and that Hoover disregarded that risk by refusing to allow him to seek medical treatment, i.e., that Hoover was deliberately indifferent to his serious medical needs. And he may or may not be able to prove deliberate indifference given that he alleges that he was able to seek medical treatment after about an hour. But taking the factual allegations in the complaint as true and construing those facts in the light most favorable to Camacho, as we must when deciding a motion to dismiss, the complaint states an Eighth Amendment medical claim upon which relief can granted against defendant Hoover.
The claims in Count II against Parks is based on Parks purportedly preventing Camacho from receiving medical assistance when he was bleeding after his surgical wound burst open. But, unlike the allegations regarding Hoover, Camacho does not allege that Parks was present when the wound burst or that Parks prevented him from receiving medical treatment. Rather, Camacho alleges that it was Dean and Hoover, not Parks and Hoover, who refused him permission to go to the medical department to seek treatment of his wound. See Doc. 1 at ¶¶ 38 & 41-43.
Defendant Price also contends that Camacho fails to state a claim upon which relief may be granted against her because he is merely complaining about delay in receiving the second surgery. She contends that as Health Care Administrator she "serves no clinical function, provides no treatment, makes no treatment decisions, and approves or disapproves no procedures." Doc. 146 at 7. Without citing a single case, she contends that "dozens of cases now pending and previously resolved before this Court" show this. Id. And she invites the Court to take judicial notice that Camacho's allegations against her are based on an incorrect assumption about how the DOC's health-care system operates. But as stated above, we must take the well pleaded factual allegations of the complaint as true and construe them in the light most favorable to Camacho. And Camacho alleges that all the physicians who assessed his injury recommended a second surgery, but Price, from whom he needed permission for surgery, prevented him from receiving that surgery for approximately 19 months, and that she did so for non-medical reasons. Given those allegations, we cannot say as a matter of law that the complaint fails to state an Eighth Amendment medical claim upon which relief can be granted against Price.
In sum, the Court should dismiss Count II as to defendant Parks, but it should not dismiss Count II as to defendants Hoover and Price.
Count IV of the complaint contains First and Eighth Amendment claims against defendants Bickell, Parks, and Cook for failure to supervise. More specifically, Camacho presents three supervisory liability claims against Bickell and two supervisory liability claims against Parks and Cooks. Defendants Bickell, Parks, and Cook contend that the Court should dismiss the claims against them because Camacho has not alleged that they were personally involved in an alleged violation of his rights.
Liability in a 42 U.S.C. § 1983 action is personal in nature, and to be liable, a defendant must have been personally involved in the wrongful conduct. In other words, defendants are "liable only for their own unconstitutional conduct." Barkes v. First Corr. Med., Inc., 766 F.3d 307, 316 (3d Cir. 2014), rev'd on other grounds sub nom. Taylor v. Barkes, 135 S.Ct. 2042 (2015). And so respondeat superior cannot form the basis of liability. Evancho v. Fisher, 423 F.3d 347, 353 (3d Cir. 2005). Thus, a constitutional deprivation cannot be premised merely on the fact that the defendant was a prison supervisor when the incidents set forth in the complaint occurred. Alexander v. Forr, 297 F. App'x 102, 104-05 (3d Cir. 2008). "Because vicarious liability is inapplicable to Bivens and § 1983 suits, a plaintiff must plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution." Iqbal, 556 U.S.at 676.
The Third Circuit has "recognized that `there are two theories of supervisory liability, one under which supervisors can be liable if they established and maintained a policy, practice or custom which directly caused the constitutional harm, and another under which they can be liable if they participated in violating plaintiff's rights, directed others to violate them, or, as the persons in charge, had knowledge of and acquiesced in their subordinates' violations.'" Parkell v. Danberg, 833 F.3d 313, 330 (3d Cir. 2016) (quoting Santiago v. Warminster Twp., 629 F.3d 121, 129 n.5 (3d Cir. 2010)). "`Failure to' claims—failure to train, failure to discipline, or, as is the case here, failure to supervise—are generally considered a subcategory of policy or practice liability." Barkes, 766 F.3d at 316.
We begin with the supervisory-liability claims against Bickell. Although Camacho titles his claims in Count IV as failure to supervise claims, he uses the language of knowledge and acquiescence as well as claiming that Bickell failed to supervise and train his subordinates. The three supervisory liability claims against Bickell relate to (1) Dean's assaults on Camacho; (2) the denial of medical care to Camacho; and (3) Dean's retaliation against Camacho. We address each in turn.
Camacho claims that by ignoring reports of abuse, refusing to speak to prisoners about abuse, and failing to refer reports of abuse for investigation as required by policy, Bickell tolerated, condoned, encouraged, and acquiesced in the practice of kitchen stewards assaulting prisoners. In support of this claim, Camacho alleges that prior to the assault by Dean with the pot lid, Bickell had received verbal and written reports that Dean had inflicted similar abuse on other prisoners, and through those reports, Bickell was aware of Dean's pattern of abuse and predatory behavior toward prisoners assigned to work in the kitchen. And, Camacho alleges, despite knowing of Dean's proclivity for cruelty and abuse and his non-compliance with Department of Corrections' policy, Bickell allowed Dean to remain in a position of authority over prisoners.
Camacho also alleges that Bickell covered up those reports of abuse by failing to order an investigation as required by DC-ADM 001 or by failing to refer the reports to the Office of Special Investigations and Intelligence. According to Camacho, by failing to insist on compliance with DC-ADM 001 by staff, Bickell tolerated, condoned, encouraged, and acquiesced in a practice of enabling abuse of prisoners who worked in the kitchen, and Bickell allegedly communicated his tolerance for and acquiescence in the abuse of kitchen workers by refusing to discipline Dean or remove him from a position of authority over prisoners.
Further, Camacho contends that as Superintendent, Bickell was responsible for training and supervising staff at SCI-Huntingdon, but he failed to adequately train and supervise his staff, including Dean, Parks, and Cook, to ensure that they understood and complied with DC-ADM 001, the policy on reporting abuse. According to Camacho, that failure to train and supervise was a cause of Dean's assault on him on with the pot lid.
"Where a supervisor with authority over a subordinate knows that the subordinate is violating someone's rights but fails to act to stop the subordinate from doing so, the factfinder may usually infer that the supervisor `acquiesced' in (i.e., tacitly assented to or accepted) the subordinate's conduct." Robinson v. City of Pittsburgh, 120 F.3d 1286, 1294 (3d Cir. 1997) (footnote omitted), abrogated on other grounds, Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 67 (2006). "A plaintiff makes sufficient allegations of a defendant's personal involvement by describing the defendant's participation in or actual knowledge of and acquiescence in the wrongful conduct." Chavarriaga v. New Jersey Dep't of Corr., 806 F.3d 210, 222 (3d Cir. 2015). Here, given Camacho's allegations that Bickell was aware of a prior pattern of abuse by Dean, that Bickell failed to correct that pattern, and that Bickell allowed Dean to remain in a position of authority over prisoners, we conclude that Camacho has sufficiently alleged that Bickell had knowledge of and acquiesced in Dean's excessive use of force against Camacho. Accordingly, the complaint states a supervisory claim against Bickell based on Dean's alleged uses of force, i.e., the alleged slamming of the pot lid on Camacho's arm and the alleged striking of Camacho's testicles.
Camacho claims that by failing to implement and require compliance with the DOC's health-care policy, Bickell tolerated, condoned, encouraged, and acquiesced in the practices of depriving prisoners of needed medical care. Here, unlike with the allegations of prior abuse by Dean, Camacho does not allege that prior to Dean and Hoover refusing to allow him to seek medical treatment for the reopening of his surgical wound, Bickell had knowledge that Dean or any other defendant was depriving prisoners or needed medical care. Nor does Camacho allege facts from which we can reasonably infer that Bickell had knowledge that Price was delaying needed surgeries for nonmedical reasons. While Camacho alleges that Bickell rebuffed his request to speak to him about the continuing abuse he suffered and his need for further surgery, we cannot reasonably infer from this allegation that Bickell actually knew of Camacho's contention that Price was denying him a needed second surgery. Thus, we conclude that Camacho fails to state a supervisory liability Eighth Amendment medical claim against Bickell under a knowledge-and-acquiescence theory.
Camacho also alleges that Bickell failed to train and supervise his staff, including Dean and Hoover, to ensure that they understood and complied with the DOC's policy on responding to medical emergencies, and as a result, Dean and Hoover denied him medical assistance after Dean ripped open his surgical wound. Similarly, Camacho alleges that Bickell failed to train and supervise Price concerning the DOC policy on health care for prisoners and her responsibilities to manage the provision of health care by contractors according to the terms of the contract entered into by the DOC, and as a result, Price refused to arrange the medically necessary surgery for Camacho for approximately 19 months. We analyze these failure-to-train-and-supervise allegations under the policy and practice strand of supervisory liability.
To set forth a claim for supervisory liability under the policy and practice strand of supervisory liability, an inmate must
Chavarriaga, 806 F.3d at 227 (quoting Brown v. Muhlenberg Twp., 269 F.3d 205, 216 (3d Cir. 2001)). "Put another way, the inmate must identify the supervisor's specific acts or omissions demonstrating the supervisor's deliberate indifference to the inmate's risk of injury and must establish a link between the supervisor, the act, and the injury." Id.
Here, Camacho's allegations regarding Bickell's failure to train regarding compliance with proper medical policy are conclusory. He has not alleged facts that plausibly support an inference that Bickell was aware that an unreasonable risk existed with regard to the provision of medical care to prisoners or that he was indifferent to any such risk. Accordingly, the complaint fails to state a supervisory claim against Bickell based his failure to train and supervise as to medical care.
Camacho claims that by blocking administrative procedures, Bickell tolerated, condoned, encouraged, and acquiesced in the practice of retaliation against prisoners. Again, he does not allege that Bickell had prior knowledge that Dean was retaliating against prisoners for their legal activities. And while, according to Camacho, Bickell's alleged failure to train and supervise his staff was a cause of Dean's retaliation, his allegations in this regard are conclusory. Accordingly, the complaint fails to state a supervisory claim against Bickell based on his failure to train and supervise as to retaliation.
Camacho contends that Parks and Cook tolerated, condoned, encouraged, and acquiesced in (1) the practice of retaliating against prisoners for constitutionally protected activity in that they covered up Dean's retaliation by deliberately blocking administrative procedures that should have led to sanctions; and (2) the practice of kitchen stewards assaulting prisoners in that they covered up this improper conduct by shuffling work schedules instead of reporting abuse to put a stop to it. The factual allegations in support of those contentions are sparse. According to Camacho, after he filed a grievance about Dean's conduct, Dean began to retaliate against him by among other things striking his testicles during pat searches, which Camacho characterizes as sexual abuse. Camacho alleges that he verbally reported the purported sexual abuse by Dean to Parks. And later, defendant Cook interviewed Camacho about the incident. But, according to Camacho, neither Parks nor Cook made the notifications required by DC-ADM 001. Instead of reporting Camacho's allegations of abuse, they scheduled Camacho to work on a different shift from Dean, which, Camacho contends, served to conceal Dean's abusive behavior, to communicate to Dean that Parks and Cook condoned such behavior, and to enable Dean to continue to abuse and intimidate Camacho.
Construing these allegations in the light most favorable to Camacho, we nevertheless conclude that he has failed to state supervisory claims against Parks and Cook upon which relief can be granted. Camacho does not allege facts from which we can reasonably infer that either Parks or Cooks participated in Dean's assaults or retaliation, directed Dean to act, or had knowledge of and acquiesced in Dean's actions. Although he does contend that by not reporting Dean in accordance with DC-ADM 001, Parks and Cook concealed Dean's abusive behavior, which communicated to Dean that they condoned such behavior and enabled Dean to continue to abuse and intimidate Camacho, he does not allege what Dean allegedly did after Camacho verbally reported the alleged sexual abuse to Parks or after Cook interviewed Camacho. Thus, we cannot reasonably infer that Parks and Cook's actions or inactions caused any of Dean's actions.
Further, whereas Camacho alleges that Parks was the kitchen supervisor, and as such, it is reasonable to infer that Parks had supervisory authority of Dean, who was a kitchen steward, Camacho merely alleges that Cook was a unit manager. Camacho does not allege facts from which we can reasonably infer that Cooks had supervisory authority over Dean. "[W]here actual supervisory authority is lacking, mere inaction, in most circumstances, does not reasonably give rise to" an inference that "the supervisor `acquiesced' in (i.e., tacitly assented to or accepted) the subordinate's conduct." Robinson, 120 F.3d at 1294 (3d Cir. 1997). And "[a]s a general matter, a person who fails to act to correct the conduct of someone over whom he or she has no supervisory authority cannot fairly be said to have `acquiesced' in the latter's conduct." Id. Thus, a defendant is not "`liable under § 1983 for failing to take action to correct the behavior of an individual over whom he had no actual control' and a higher-ranked individual does not necessarily have supervisory authority over a lower-ranked employee." Jennings-Fowler v. City of Scranton, No. 16-1256, 2017 WL 715068, at *4 n.23 (3d Cir. Feb. 23, 2017) (quoting Robinson, 120 F.3d at 1294). Because Camacho has not alleged that Cook had supervisory authority over Dean, the complaint fails to state a supervisory liability claim against Cook upon which relief can be granted.
In sum, the complaint fails to state supervisory liability claims upon which relief can be granted against either Parks or Cook.
"[I]f a complaint is subject to a Rule 12(b)(6) dismissal, a district court must permit a curative amendment unless such an amendment would be inequitable or futile." Phillips v. County of Allegheny, 515 F.3d 224, 245 (3d Cir. 2008). Here, Camacho requests leave to amend should the Court conclude that the complaint fails to state a claim upon which relief can be granted. We cannot say that amendment would be inequitable or futile in this case. Thus, we will recommend that the Court grant Camacho leave to file an amended complaint.
Based on the foregoing, we recommend that the Court grant in part and deny in part the defendants' motion (doc. 145) to dismiss the complaint. More specifically, we recommend that the Court dismiss Count II as to Parks but not as to Hoover and Price. We further recommend that the Court dismiss the supervisory liability claims in Count IV as to Parks and Cooks and the supervisory liability claims against Bickell as to Dean's alleged retaliation and the other defendants' alleged denial of medical care. We recommend that the Court not dismiss the supervisory liability claims against Bickell as to Dean's use of force. Further, as the motion to dismiss did not address Counts I and III of the complaint, we recommend that the Court not dismiss those claims. Finally, we recommend that the Court grant Camacho leave to file an amended complaint.
The Parties are further placed on notice that pursuant to Local Rule 72.3:
