The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
JOSHUA ANTHONY JAMES BUTLER : CIVIL ACTION
v. NO. 19-515
OFFICER LOMBARDO
MEMORANDUM
KEARNEY, J. November 4, 2019
An inmate claiming a correctional officer violated his civil rights by failing to protect him
from a prison block worker or possibly another inmate who cut him with a knife at an unidentified
time must allege the officer’s deliberate indifference to a substantial risk to the inmate’s health and
safety and this deliberate indifference caused him harm. He needs to plead facts and not
guesswork. Supposing someone cut him during the overnight period sometime in an earlier
twelve-day period does not plead deliberate indifference by the correctional officer. We today
have no basis from the pro se amended complaint to proceed on a civil rights claim against a
correctional officer based on knife cuts caused by either a prison block worker or someone else
sometime during the night within a twelve-day period over the yearend holidays. From a reading
of the civil rights claim, the correctional officer’s only connection to these alleged assaults is
working at the jail. Absent pleading of the officer’s deliberate indifference allowing a prison block
worker or other unidentified person to possibly access a cell and cut the complaining inmate at
some unidentified time, we must dismiss the amended complaint. We will allow the pro se
prisoner leave to timely file a second amended complaint if he can in good faith or we will dismiss
with prejudice.
I. Pro se alleged facts
On January 2, 2019, while detained in Berks County Jail awaiting his criminal trial in state
court, Joshua Anthony James Butler discovered two knife wounds on his buttocks, “one being a
gash and one being a nix [sic].”! He reported to the jail’s nurse, who diagnosed his injury as a rash
and offered to treat the rash with antibiotics.2_ Mr. Butler declined treatment “because [he] knew
showering with [his] dial antibacterial soap would prevent infection .. . .”?
While he discovered the knife wounds on January 2, 2019, Mr. Butler alleges these knife
assaults occurred sometime between December 20, 2018 and December 31, 2018 between “11pm
to 6am, when the lights are out.”4 He pleads “Officer Lombado [sic] allowed the block worker
Matthis Brown to enter into my cell to cut me while I was sleeping.” Mr. Butler “believe[s]
Officer Lambado [sic]; allowed, Block worker: Matthis [Brown], or, this other Spanish inmate,
whos [sic] name I do not know, to enter into my room to stab me, while I was asleep.”°
II. Analysis
Officer Lombardo moves to dismiss Mr. Butler’s amended complaint.’ We grant his
motion in an accompanying Order.
Mr. Butler fails to plead Officer Lombardo failed to protect him.
Officer Lombardo moves to dismiss Mr. Butler’s claim against him.® We liberally construe
Mr. Butler’s pro se claim against Officer Lombardo as alleging Officer Lombardo failed to protect
him from this alleged assault on an unknown date.?
Our Court of Appeals recognized “the right to be free from physical attack and injury as a
liberty interest protected by the Due Process Clause” and the viability of prisoner failure-to-protect
claims.!° To state a failure-to-protect claim, a prisoner “must plead facts . . . show[ing] (1) he was
incarcerated under conditions posing a substantial risk of serious harm, (2) the official was
deliberately indifferent to [the] substantial risk to his health and safety, and (3) the official’s
deliberate indifference caused him harm.”!!
“An official acts with deliberate indifference when he . . . knows of and disregards a
substantial risk of serious harm to inmate health and safety.”!? Mr. Butler must plead (1) the
conditions of his incarceration in the Berks County Jail posed a substantial risk of serious harm,
(2) Officer Lombardo’s subjective awareness and disregard of the risk of harm to Mr. Butler’s
health or safety, and (3) Officer Lombardo’s disregard of the risk caused his harm."
Mr. Butler’s amended complaint fails to plead these elements. He does not plead (1) Mr.
Butler’s incarceration under conditions posing a substantial risk of serious harm, (2) Officer
Lombardo’s deliberate indifference to a substantial risk to Mr. Butler’s health and safety, and (3)
harm caused by Officer Lombardo’s deliberate indifference. Mr. Butler admits a range of dates
during which a possible assault occurred.'4 He acknowledges the attack occurred during “lights
out” and “while [he] was asleep.”!> He is unsure of who attacked him, or when, or how. We do
not know the role of the block worker in the jail or the relationship between the block worker and
Officer Lombardo.
At most, Mr. Butler alleges Officer Lombardo allowed either block worker Matthis or □□□□□
other Spanish inmate, whos [sic] name [Mr. Butler] do[es] not know” to enter Mr. Butler’s cell
and attack him.!© Without more, Mr. Butler’s claim is insufficient because he does not plead facts
claiming Officer Lombardo knew of a risk to his safety. Even if Officer Lombardo did leave Mr.
Butler’s cell open or otherwise allow another inmate to access Mr. Butler’s cell, Mr. Butler fails
to allege Officer Lombardo subjectively knew of any substantial risk of harm Mr. Butler might
face. Further undercutting his claim, Mr. Butler avers Officer Lombardo allowed another person
to cut him “for some reason.”!”
Mr. Butler fails to state a claim for failure to protect against Officer Lombardo because the
allegations. Mr. Butler does not plead a plausible claim of deliberate indifference. We dismiss
Mr. Butler’s claim against Officer Lombardo without prejudice and grant him leave to timely
amend should he be able to do so consistent with this Memorandum and his obligations under
Federal Rule 11.
III. Conclusion
We dismiss Mr. Butler’s failure-to-protect claim against Officer Lombardo because he
failed to allege sufficient facts showing (1) Mr. Butler’s incarceration under conditions posing a
substantial risk of serious harm, (2) Officer Lombardo’s deliberate indifference to a substantial
risk to Mr. Butler’s health and safety, and (3) harm caused by Officer Lombardo’s deliberate
indifference.
' ECF Doc. No. 7 at IV(D).
2 Id. at 1V(D)-V.
3 Id. at V.
4 Id. at IV(C)-(D).
> Id. at IV(B).
® Id. (emphasis added).
7 ECF Doc. No. 22. We dismissed Mr. Butler’s initial complaint against the Berks County Jail as
he must plead a “person” violated his civil rights either directly or as a supervisor. ECF Doc. No.
5. We granted Mr. Butler leave to file an amended complaint. Jd. He sued Officer Lombardo and
Mr. Brown but then failed to prosecute the case against Mr. Brown and we dismissed him after
Mr. Butler failed to respond to our rule to show cause. ECF Doc. Nos. 17, 18.
When considering a motion to dismiss for failure to state a claim “[w]e accept as true all allegations
in the plaintiff's complaint as well as reasonable inferences ... can be drawn from them, and we
construe them in a light most favorable to the non-movant.” Tatis v. Allied Interstate, LLC, 882
F.3d 422, 426 (3d Cir. 2018) (quoting Sheridan v. NGK Metals Corp., 609 F.3d 239, 262 n.27 (3d
Cir. 2010)).
To survive dismissal, “a complaint must contain sufficient factual matter, accepted as true, to ‘state
a claim to relief ... plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the
plaintiff pleads factual content ... allows the court to draw the reasonable inference ... the
defendant is liable for the misconduct alleged.” Jd. (citing Twombly, 550 U.S. at 556).
Our Court of Appeals requires us to apply a three-step analysis when deciding a 12(b)(6) motion:
(1) “[we] must ‘take[] note of the elements [the] plaintiff must plead to state a claim;’” (2) “[we]
should identify allegations ..., ‘because they are no more than conclusions, are not entitled to the
assumption of truth;’” and, (3) “[W]hen there are well-pleaded factual allegations, [we] should
assume their veracity and then determine whether they plausibly give rise to an entitlement for
relief.” Connelly v. Lane Constr. Corp., 809 F.3d 780, 787 (3d Cir. 2016) (quoting Jgbal, 556 U.S.
at 675, 679).
Despite /qbal’s heightened pleading requirements, the district court must be more flexible in its
interpretation of pro se pleadings.” Boyer v. Mohring, 994 F. Supp. 2d 649, 654 (E.D. Pa. 2014);
see Higgs vy. Attorney General of the United States, 665 F.3d 333, 339 (3d Cir. 2011), as amended
(Sept. 19, 2011) (“[W]hen presented with a pro se litigant, we ‘have a special obligation to construe
his complaint liberally.’” (quoting United States v. Miller, 197 F.3d 644, 648 (3d Cir. 1999))).
8 Officer Lombardo argues “[Mr.] Butler does not expressly identify the grounds for which he
asserts a violation of his Constitutional Rights” but identifies a failure to protect claim as “a
‘possible’ asserted claim.” /d. at p. 4n.2.
Because Mr. Butler brings this case as a pretrial detainee, the Eighth Amendment is inapplicable.
But “courts have determined . . . the rights afforded pretrial detainees under the due process clause
are at least as great as those afforded by the Eighth Amendment.” Faulcon v. City of Philadelphia,
18 F. Supp. 2d 537, 540 (E.D. Pa. 1998) (citing Simmons v. City of Philadelphia, 947 F.2d 1042,
1067 (3d Cir. 1991)). “Therefore, courts analyzing cases by pretrial detainees apply the same
standard of deliberate indifference applied to the eighth amendment cases.” Jd.
10 ED. v. Sharkey, No. 16-2750, 2017 WL 2126322, at *4 (E.D. Pa. May 16, 2017) (citing
Davidson v. O’Lone, 752 F.2d 817, 821-22 (3d Cir. 1984), aff'd sub nom. Davidson v. Cannon,
474 U.S. 344 (1986)).
'! Parkell v. Markell, 622 F. App’x 136, 139 (3d Cir. 2015) (per curiam) (quoting Bistrian v. Levi,
696 F.3d 352, 367 (3d Cir. 2012)).
12 Td. (quoting Farmer v. Brennan, 511 U.S. 825, 837 (1994)).
3 Sharkey, 2017 WL 2126322, at *4 (citing Farmer, 511 U.S. at 837; Natale v. Camden County
Correctional Facility, 318 F.3d 575, 582 (3d Cir. 2003)).
4 ECF Doc. No. 7 at IV(C).
'5 Td. at IV(C); p. 12.
16 Tq.
'7 Tq. at II(D).