SUSAN PARADISE BAXTER, Magistrate Judge.
It is respectfully recommended that Defendants' Motion to Dismiss [ECF No. 12] be granted in part and denied in part, as follows:
Presently before the Court is the Motion to Dismiss filed on behalf of M. Overmyer, D. Oberlander, A. Norris, K. Smith, A. Lopez, K. Hill, Lt. Dickey, CO Becker, K. Moore, and Blicha ("Defendants"), pursuant to Federal Rule of Civil Procedure 12(b)(6). (ECF No. 12). In his Complaint, Gabriel Rosa-Diaz ("Plaintiff") brings various claims pro se under 42 U.S.C. § 1983, as well as the common law of Pennsylvania, for events which took place during his incarceration at S.C.I. Forest ("Prison").
On July 17, 2014, Plaintiff met with the Program Review Committee ("Committee") at the Prison due to his impending release from the Restrictive Housing Unit ("RHU") into the general population. (ECF No. 3 ¶ 17). Defendant Oberlander, the Prison's Deputy Superintendent for Centralized Services, was also present. (Id.). During the course of the meeting, Plaintiff informed both the Committee and Oberlander that he was not affiliated with any gangs in the Prison. (Id.).
On November 4, 2014, Plaintiff was the victim of a "hit" by three inmates which was allegedly orchestrated by Prison Security — specifically, Defendant Dickey. (ECF No. 3 ¶¶ 19 - 21). Following this incident, the details of which are not provided in the Complaint, Plaintiff was labeled a "gang member" and considered for placement in the Prison's Security Threat Group Management Unit ("STGMU"). (Id. ¶ 22). When Plaintiff learned that he might be placed in STGMU, he refused to leave his cell. (Id. ¶ 23).
On February 16, 2015, Plaintiff wrote a "request slip" to Defendant Oberlander, insisting that he was not a gang member, and stating that Oberlander was "an insincere, dishonest imbecile" for having Plaintiff labeled as such. (ECF No. 3 ¶¶ 25 - 26). Plaintiff went on to say that he would not participate in any Prison programming if placed in STGMU, and would encourage other inmates to do the same. (Id. ¶ 26). On March 18, 2015, Oberlander made a recommendation in favor of Plaintiff's placement in STGMU. (Id. ¶¶ 27, 30).
On April 30, 2015, Plaintiff filed an "appeal" of this recommendation with the Committee. (ECF No. 3 ¶ 29). The appeal was denied, and Defendant Overmyer — the Prison's Facility Manager — allegedly played a part in this decision. (Id. ¶ 31). On October 16, 2015, Plaintiff was placed in the K-Unit of STGMU. (Id. ¶ 33). While Overmyer was making rounds through K-Unit that same day, Plaintiff confronted him and asked why he had been labeled a gang member by Prison officials. (Id. ¶¶ 34 - 35). Overmyer allegedly responded by stating: "[y]ou should have thought about that before you started running your mouth to Oberlander." (Id. ¶ 36).
Plaintiff then filed Grievance No. 597168 claiming that his placement in STGMU was an act of retaliation by Defendants Oberlander and Overmyer in response to Plaintiff's February 16, 2015 "request slip." (ECF No. 3 ¶¶ 41 - 42). Plaintiff ultimately remained in STGMU for forty (40) days "without being able to order publications, and only being permitted to retain . . . one (1) Bible and legal papers." (Id. ¶ 45).
On November 25, 2015, Defendant Becker — a correctional officer in K-Unit — allegedly attacked Plaintiff when he exited his cell. (ECF No. 3 ¶¶ 47 - 49). Plaintiff was slammed, face-first, into the floor of his cell, and Becker proceeded to punch him in the head and face approximately ten to fifteen times. (Id. ¶¶ 49 - 50). Plaintiff was then carried to another location, at which point Becker kicked Plaintiff repeatedly on the left side of his body. (Id. ¶ 54). Becker declared that this treatment was "courtesy of Facility Manager Overmyer for filing a grievance against him." (Id. ¶ 48). Defendant Lopez — a Correctional Unit Manager in K-Unit — purportedly witnessed these acts, and exclaimed that it was meant to deter Plaintiff from "filing grievances and refrain from pursuing that active lawsuit that he got going on." (Id. ¶ 55).
After the attack by Becker, Plaintiff was examined by Defendant Hill — a Prison Nurse. (ECF No. 3 ¶ 57). Plaintiff informed Nurse Hill that he had been attacked, that his head ached, and that it felt like his ribs were cracked. (Id. ¶ 58). He then requested "pain killer medication and x-rays." (Id.). Nurse Hill allegedly responded "I have already been given my orders," and took one photograph of Plaintiff's head. (Id. ¶¶ 59 - 60). There was a laceration on the back of Plaintiff's head which was observed, but Nurse Hill concluded that it "[l]ooks to me that you did that yourself with a razor." (Id. ¶ 61). Nurse Hill made some notes, "and left without providing Plaintiff with any pain killers." (Id. ¶ 62).
On December 1, 2015, Plaintiff directed a "request slip" to Overmyer seeking medical attention due to left sided pain when breathing. (ECF No. 3 ¶¶ 68 - 69). When no response was received, Plaintiff directed another "request slip" to Oberlander on December 3, 2015. (Id. ¶¶ 70 - 71). No response was received. (Id. ¶ 73). On December 4, 2015, Overmyer stopped in front of Plaintiff's cell and allegedly stated that it "[l]ooks like you're not so happy about the Thanksgiving present I sended [sic] you to K-Unit." (Id. ¶ 65). On December 6, 2015, Plaintiff completed yet another "request slip" directed to Defendant Smith — the Prison's Correctional Health Care Administrator. (Id. ¶ 74). As before, no response was received. (Id. ¶ 76). Finally, on December 15, 2015, Plaintiff wrote a letter to the Bureau of Health Care Services. (Id. ¶ 77). Defendant Norris — Acting Director of the Bureau of Health Care Services — replied, indicating that Plaintiff's medical record had been reviewed and the care provided by medical staff at the Prison was deemed "medically appropriate." (Id. ¶¶ 80 - 81). Plaintiff allegedly suffered pain in his left side for a further three-and-one-half months. (Id. ¶ 86).
On some unspecified date after the alleged attack by Defendant Becker, Plaintiff filed Grievance No. 601593 seeking the names and inmate numbers of potential witnesses. (ECF No. 3 ¶¶ 90 - 92). The request was denied, and Plaintiff filed an appeal on August 8, 2016. (Id. ¶ 90). Defendant Overmyer allegedly reviewed the appeal and denied it. (Id. ¶ 92).
Plaintiff was placed in a Psychiatric Observation Cell ("POC") in J-Unit at some point after his alleged assault at the hands of Defendant Becker. (ECF No. 3 ¶ 97). Oberlander wrote in Prison records that Plaintiff had been placed in POC due to "threats of self-harm and to others after he was informed that he was being moved from J-Unit back to the STGMU on K-Unit." (Id. ¶ 110). On March 2, 2016, Oberlander met with Plaintiff to discuss moving him from STGMU to the Restricted Release List ("RRL"). (Id. ¶ 95). For Plaintiff to be properly processed for such a move, however, he would briefly need to return to K-Unit. (Id. ¶¶ 96 - 97). Plaintiff objected, noting that Becker was still assigned to K-Unit. (Id. ¶¶ 99, 101 - 07). Plaintiff also stated that he wished to remain with the STGMU program because it would improve his chances for parole; inmates placed on RRL allegedly are unable to make parole, and Plaintiff was due to appear before the parole board in April 2017. (Id. ¶¶ 98 - 99). Plaintiff was nevertheless transferred back to K-Unit on March 4, 2016. (Id. ¶ 108).
Plaintiff thereafter filed a Complaint in this Court, asserting various constitutional claims under § 1983, as well as common law claims under Pennsylvania law. (ECF No. 3). Through their Motion, filed February 1, 2018, Defendants seek dismissal of all claims. (ECF No. 12). In response to the motion to dismiss, Plaintiff filed a "Proposed Amendment to the Complaint in order to cure procedural deficiencies."
Avoiding dismissal under Rule 12(b)(6) requires a complaint to provide "enough factual matter" to allow the case to move beyond the pleading stage of litigation; the pleader must "`nudge his or her claims across the line from conceivable to plausible.'" Phillips v. Cnty. of Allegheny, 515 F.3d 224, 234 - 35 (3d Cir. 2008) (quoting Bell Atlantic Co. v. Twombly, 550 U.S. 544, 556, 570 (2007)). In assessing the merits of a claim subject to a motion to dismiss, a court must engage in a two-part analysis. Fowler v. UPMC Shadyside, 578 F.3d 203, 210 - 11 (3d Cir. 2009). First, factual and legal elements of a claim must be distinguished. Id. Second, it must be determined whether the facts as alleged support a "plausible claim for relief." Id. In making the latter determination, the court must be mindful that the matter pleaded need not include "detailed factual allegations," Phillips, 515 F.3d at 231 (quoting Twombly, 550 U.S. at 555), and the court must construe all alleged facts, and draw all inferences gleaned therefrom, in the light most favorable to the non-moving party. Id. at 228 (citing Worldcom, Inc. v. Graphnet, Inc., 343 F.3d 651, 653 (3d Cir. 2003)). Moreover, pleadings filed by pro se litigants should be liberally construed. Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 244 (3d Cir. 2013) (citing Higgs v. Att'y Gen., 655 F.3d 333, 339 (3d Cir. 2011)).
Nevertheless, the facts pled do need to raise the expectation of relief above a purely speculative level, and must include more than "labels and conclusions, and a formulaic recitation of the elements of a cause of action." Phillips, 515 F.3d at 231 - 32 (quoting Twombly, 550 U.S. at 554 - 56). Rule 8(a)(2) "requires a `showing' rather than a blanket assertion of an entitlement to relief." Id. at 232. "[T]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice," Fowler, 578 F.3d at 211 (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)), and even pro se litigants are required to plead facts sufficient to support their claims, and cannot flout procedural rules. Mala, 704 F.3d at 245.
As an initial matter, the Court notes that Plaintiff failed to file a brief in opposition to the instant Motion, the due date for which was December 12, 2017.
Defendants move for the dismissal of Overmyer, Moore, Blicha, Norris, Dickey, Smith, Lopez, and Oberlander based on Plaintiff's failure to plead their personal involvement in any of the alleged constitutional violations.
Plaintiff asserts multiple claims pursuant to 42 U.S.C. § 1983, which provides that:
Id. Congress conceived § 1983 as a safeguard against deprivations of individual rights conferred by federal statutes and the Constitution. City of Rancho Palos Verdes, Cal. v. Abrams, 544 U.S. 113, 119 (2005) (citing Maine v. Thiboutot, 448 U.S. 1, 4 (1980)). In order to properly state a valid § 1983 claim, a plaintiff must demonstrate that an individual acting under color of law violated enumerated constitutional or statutory rights. Berg v. Cnty. of Allegheny, 219 F.3d 261, 268 (3d Cir. 2000).
Showing a defendant's "`personal involvement in the alleged wrongs'" is, therefore, essential. Chavarriaga v. N.J. Dep't of Corr., 806 F.3d 210, 222 (3d Cir. 2015) (quoting Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988)). "A plaintiff `must portray specific conduct by state officials'" to make such a showing. Id. (quoting Gittlemacker v. Prasse, 428 F.2d 1, 3 (3d Cir. 1970)).
In the Complaint, Defendant Dickey was alleged to have been involved in an "orchestrated hit" on Plaintiff by three inmates in November 2014. (ECF No. 3 ¶¶ 19 - 20). Plaintiff fails to plead any particular claim against Dickey, or to provide any details beyond mere speculation regarding Dickey's involvement in the "hit." Additionally, Plaintiff makes no specific factual allegations as to either Moore or Blicha, aside from identifying their positions at the Prison. Neither are they identified in conjunction with any specific claims.
Plaintiff alleges that Defendant Lopez witnessed the entirety of the assault by Defendant Becker and did nothing to intervene. Lopez even commented to Becker: "I cannot allow you to have too much fun." (ECF No. 3 ¶ 55). The Court of Appeals for the Third Circuit has held that a corrections officer can be held liable for cruel and unusual punishment due to his or her failure to intervene in a beating when there was a reasonable opportunity to do so. Fears v. Beard, 532 F.App'x 78, 82 (3d Cir. 2013) (citing Smith v. Mensinger, 293 F.3d 641, 650 - 51 (3d Cir. 2002)). The "`restriction on cruel and unusual punishment contained in the Eighth Amendment reaches non-intervention just as readily as it reaches the more demonstrable brutality of those who unjustifiably and excessively employ fists, boots or clubs.'" Evans v. Cameron, 442 F.App'x 704, 706 (3d Cir. 2011) (quoting Mensinger, 293 F.3d at 651). Accordingly, the claim against Defendant Lopez should not be dismissed.
Plaintiff also attempts to extend liability for the alleged use of force by Becker to Oberlander and Overmyer on the basis of supervisory liability. A supervisor may be personally liable for conduct underlying a § 1983 claim "`if he or she participated in violating the plaintiff's rights, directed others to violate them, or, as the person in charge, had knowledge of and acquiesced in his subordinates' violations.'" Santiago v. Warminster Twp., 629 F.3d 121, 129 (3d Cir. 2010) (quoting A.M. ex rel. J.M.K. v. Luzerne Cnty. Juvenile Det. Ctr., 372 F.3d 572, 586 (3d Cir. 2004)). The present Complaint does not allege facts which tend to show that Oberlander was involved in sanctioning or acquiescing in Defendant Becker's attack on Plaintiff; however, the Complaint does allege that Overmyer directed Becker to assault Plaintiff. As such, any claim for cruel and unusual punishment against Oberlander based upon supervisory liability should be dismissed. The same claim against Overmyer should survive.
Plaintiff alleges that he complained about Nurse Hill's failure to treat him by way of 1) a request slip to Smith, the prison's Health Care Administrator, and 2) a letter to Defendant Norris, the Director of the Bureau of Health Care Services. Plaintiff explains that he never received a response from Hill and that a return response from Norris indicated that Plaintiff's medical record had been reviewed and that the medical care Plaintiff received was "medically appropriate."
The denial of Plaintiff's grievances or other written complaints does not, in itself, satisfy the requisite "personal involvement" requirement. Mincy v. Chmielsewski, 508 Fed.App'x 99, 104 (3d Cir. 2013) ("[A]n officer's review of, or failure to investigate, an inmate's grievances generally does not satisfy the requisite personal involvement."); Rogers v. United States, 696 F.Supp.2d 472, 488 (W.D. Pa. 2010) ("If a grievance official's only involvement is investigating and/or ruling on an inmate's grievance after the incident giving rise to the grievance has already occurred, there is no personal involvement on the part of that official."). Furthermore, the Third Circuit has held that prison officials who are not physicians cannot be considered deliberately indifferent simply because they failed to respond directly to the medical complaints of a prisoner (see Durmer v. O'Carroll, 991 F.2d 64 (3d Cir. 1993)) and health care administrators are considered to be non-medical prison officials in the context of § 1983 denial of medical care claims. See Spencer v. Beard, 2010 WL 608276, at *4 n.5 (W.D. Pa. Feb. 17, 2010) (citing Hull v. Dotter, 1997 WL 327551, at *4 (E.D. June 12, 1997)). The claims against Smith and Norris should be dismissed.
Plaintiff alleges that Defendants Oberlander and Overmyer placed him in STGMU in retaliation for his February 16, 2015 request slip questioning his categorization as a gang member. It is also claimed that Overmyer later instructed Defendant Becker to physically assault Plaintiff in retaliation for filing Grievance No. 597168. Defendants contend that Plaintiff failed to adequately plead such claims.
"In order to state a prima facie case of First Amendment retaliation, a prisoner must plausibly allege that: (1) he engaged in constitutionally protected conduct; (2) he suffered an adverse action sufficient to deter a person of ordinary firmness from exercising his constitutional rights; and (3) the constitutionally protected conduct was `a substantial motivating factor' for the adverse action." Pepe v. Lamas, 679 F.App'x 173, 175 (3d Cir. 2017) (quoting Rauser v. Horn, 241 F.3d 330, 333 (3d Cir. 2001)). Plaintiff easily meets the requirements of the first two elements. His written statements questioning his treatment by Prison authorities is protected conduct. Watson v. Rozum, 834 F.3d 417, 422 (3d Cir. 2016) (citing Mitchell v. Horn, 318 F.3d 523, 530 (3d Cir. 2003)). His movement to K-Unit and the STGMU, and resulting restriction in privileges, is adequate for purposes of the de minimis showing required to demonstrate adverse action, as is his alleged assault at the hands of Defendant Becker. Id. at 423 (citing McKee v. Hart, 436 F.3d 165, 170 (3d Cir. 2006)).
As to the third element, Plaintiff can demonstrate a causal link via: "(1) an unusually suggestive temporal proximity between the protected activity and the allegedly retaliatory action, or (2) a pattern of antagonism coupled with timing." Watson, 834 F.3d at 424. With respect to Plaintiff's placement in STGMU, he learned of his categorization as a gang member by Defendant Oberlander sometime after November 4, 2014. Plaintiff completed a request slip to Oberlander objecting to this categorization on February 16, 2015. Oberlander recommended that Plaintiff be placed in STGMU on March 18, 2015. On April 30, 2015, Plaintiff filed an appeal of this recommendation with the Committee and Defendant Overmyer. The appeal was denied, and Plaintiff was moved to STGMU on October 16, 2015.
There is nothing particularly suggestive about the timing of Plaintiff's placement in STGMU. Plaintiff acknowledged being under consideration for such placement in late 2014. He did not file his request slip until February 16, 2015. The request slip contained pejorative statements, and threatened Plaintiff's resistance to participation as well as his encouragement to other inmates to do the same. While Oberlander ultimately recommended Plaintiff for STGMU, over a month had passed between the recommendation and the filing of Plaintiff's "request slip." Plaintiff was subsequently provided the opportunity to appeal his potential placement, and more than five months passed between the time of the appeal and the actual placement in STGMU. The entire course of events was spread out over nearly one full year. While it is alleged that Overmyer informed Plaintiff that he should have thought about the consequences of "running your mouth to Oberlander," even when viewed in the light most favorable to Plaintiff, the timing and other allegations of fact do not suggest that the February 16, 2015 request slip was a substantial motivating factor in Plaintiff's placement in STGMU. Thus, this claim should be dismissed.
With respect to Defendant Becker's alleged assault of Plaintiff, Plaintiff contends that it was in response to Grievance No. 597168, wherein Plaintiff claimed that his placement in STGMU was an act of retaliation. The Court cannot determine whether the timing of the attack is suggestive of a causal link, because Plaintiff does not indicate when Grievance No. 597168 was filed. The Court knows only that the assault occurred on November 25, 2015, approximately one month after Plaintiff's placement in STGMU. Plaintiff does plead that Defendant Becker informed him that the assault was "courtesy of Facility Manager Overmyer for filing a grievance against him." Viewed in the light most favorable to Plaintiff, this statement clearly suggests retaliation by Overmyer. Thus, Plaintiff's retaliation claim against Overmyer relative to Grievance No. 597168, should not be dismissed.
Plaintiff alleges that Defendant Nurse Hill examined him in the K-unit strip cage immediately following the assault. According to Plaintiff, Hill took one photo, refused to take other photos as requested by Plaintiff, refused to give pain meds as requested, wrote something on a piece of paper and left.
With respect to Plaintiff's claims of deliberate indifference to medical needs, in order to properly state a claim, a claimant 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., 805 F.3d 526, 534 (3d Cir. 2017) (quoting Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir. 1999)). As to the first element, where an inmate has received some medical attention, deliberate indifference is difficult to demonstrate. Palakovic v. Wetzel, 854 F.3d 209, 227 (3d Cir. 2017) (citing Durmer v. O'Carroll, 991 F.2d 64, 67 (3d Cir. 1993)).
Plaintiff claims that Nurse Hill was deliberately indifferent to his medical needs because she did not prescribe him any pain medication and did not order x-rays following Defendant Becker's attack. However, Plaintiff has failed to illustrate that the decision not to prescribe pain medication was the result of deliberate indifference, as opposed to medical judgment. Stones v. McDonald, 573 F.App'x 236, 238 (3d Cir. 2014). He also has not shown that Nurse Hill's decision to forego x-rays following her examination of Plaintiff was due to obduracy and wantonness. Pearson, 850 F.3d at 539 (citing Whitley, 475 U.S. at 319). Where "`a prisoner has received some medical attention and the dispute is over the adequacy of the treatment, federal courts are generally reluctant to second guess medical judgments and to constitutionalize claims which sound in state tort law.'" Fantone v. Herbik, 528 F.App'x 123, 125 (3d Cir. 2013) (quoting United States ex rel. Walker v. Fayette Cnty., 599 F.2d 573, 575 n. 2 (3d Cir. 1979)). Accordingly, Plaintiff has not made a subjective showing of deliberate indifference on the part of Nurse Hill, and the claim against her should be dismissed.
Plaintiff alleges a general conspiracy among the named Defendants to deprive him of his constitutional rights. In order to plead a conspiracy under § 1983, allegations "must provide some factual basis to support the existence of the elements of a conspiracy: agreement and concerted action." Capogrosso v. The Supreme Court of N.J., 588 F.3d 180, 185 (3d Cir. 2009) (citation omitted). Plaintiff's Complaint does not contain allegations of fact indicating that the Defendants came to any sort of agreement to deprive him of his constitutional rights; neither has he pled facts illustrating concerted action on the part of any of the Defendants. In sum, Plaintiff "does not paint a plausible picture of a wide-ranging conspiracy by the named Defendants." Wesley v. Varand, 505 F.App'x 91, 94 (3d Cir. 2012). Plaintiff's claim for conspiracy should, therefore, be dismissed as to all Defendants.
Defendant Overmyer is the only remaining Defendant sued in both his individual and official capacities. It is well established that, absent consent, a state cannot be sued in federal court for a civil rights violation. Story v. Mechling, 412 F.Supp.2d 509, 516 (W.D. Pa. 2006) (citing Edelman v. Jordan, 415 U.S. 651, 663 (1974)). Official capacity suits have been construed as nothing more than claims against an official's employer — the state. Id. at 517 (citing Laskaris v. Thornburg, 661 F.2d 23, 25 (3d Cir. 1981)). Consequently, official capacity suits are similarly barred by the Eleventh Amendment. Id. To the extent Plaintiff seeks to assert claims against Defendant Overmyer in his official capacity, the claims should be dismissed — with prejudice.
Defendants make no arguments pertaining to the state law claims asserted against Defendants Overmyer, Becker, or Lopez. As such, the Court will not address these claims.
Defendants final argument is that punitive damages should not be made available to Plaintiff, because he has failed to demonstrate that any of the Defendants acted with bad motive or reckless indifference to the rights of others. Viewed in the light most favorable to Plaintiff, the facts contained in the Complaint demonstrated conduct on the part of Defendants Overmyer, Becker, and Lopez which could justify an award of such damages. Thus, requests for punitive damages should not be dismissed at this stage in the litigation.
Based upon the foregoing, and viewing all record evidence in the light most favorable to Plaintiff, it is recommended that Defendants' Motion to Dismiss [ECF No. 12] be granted in part and denied in part, as follows:
In accordance with the Magistrate Judges Act, 28 U.S.C. 636(b)(1)(B) and (C), and Rule 72.D.2 of the Local Rules of Court, the parties are allowed fourteen (14) days from the date of service of a copy of this Report and Recommendation to file objections. Any party opposing the objections shall have fourteen (14) days from the date of service of objections to respond thereto. Failure to file timely objections will constitute a waiver of any appellate rights.
