The opinion
FORI NT HTEH EE AUSNTIETREND DSTISATTREISC DT IOSFT RPIECNTN CSOYULRVAT NIA
ISHMAEL A. BURK, :
Plaintiff, :
:
v. : CIVIL ACTION NO. 21-CV-3969
:
KENNETH M EASON, et al., :
Defendants. :
MEMORANDUM
PAPPERT, J. SEPTEMBER 15, 2021
Ishmael A. Burk, a prisoner incarcerated at SCI-Chester (“SCIC”), filed a civil
rights Complaint pursuant to 42 U.S.C. § 1983. Named as Defendants are SCIC
Superintendent Kenneth M Eason, Records Supervisor Latoria Johnson, Counselor
Wanda Mansun-Johnson,1 and Coordinator Mark Wahl. All Defendants are named in
their official capacities only. Burk also seeks leave to proceed in forma pauperis and
has submitted his institutional account statement. For the reasons that follow, the
Court will grant the application to proceed in forma pauperis, dismiss certain claims
with prejudice for failure to state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii), and
permit other claims to proceed. Burk will be granted leave to file an amended
complaint.
I
Burk’s Complaint is brief. He alleges constitutional claims for “racial
discrimination and segregation by prison authorities.” (ECF No. 1 at 3.)2 He asserts
1 Mansun-Johnson’s name is not spelled consistently in the Complaint. The Court
will use the spelling Burk used in the list of Defendants contained in the Complaint.
2 The Court adopts the pagination supplied by the ECF/CM docketing system.
Eason, Johnson, Mansun-Johnson, and Wahl prevent African-American prisoners from
entering a drug treatment program in Pennsylvania. (Id. at 12.) He also alleges Wahl
violated his Eighth Amendment rights by “taking away my State browns.”3 (Id.) He
wrote to Mansun-Johnson asking to be placed in the drug program, but she never
responded to him. (Id. at 13.) He then wrote to Wahl who allegedly responded that
“only White inmates can be entered into this program.” (Id.) Burk encountered Eason
on January 10, 2021 and told him of the information he received from Wahl. Eason
allegedly told Burk to write to Johnson, the SCIC records supervisor. (Id.) When he
did so, Johnson responded that “only White inmate [sic] can be entered into the state
Drug Program and that it would be a waste of time to enter my name.” (Id.) Burk filed
a grievance over the issue and received a response that he did not qualify for the
program “because of the color of my skin and that my grievance was denied.” (Id.) An
appeal of that decision was also denied. (Id.) On February 15, 2021, Burk spoke to
Mansun-Johnson to tell her about his concern about racism within SCIC, his drug
problem, and how the problem was not being addressed properly. (Id.) She allegedly
told him “she did not care because I wrote a grievance on her and that it was my fault.”
(Id.)
On February 18, 2021, when Eason and Wahl were doing rounds on Burk’s cell
block, he spoke to both about how he was eligible for the drug program but was denied
due to his race. (Id. at 13-14.) They again allegedly told him that the drug program
was only available to White inmates. (Id. at 14.) He wrote another grievance about the
issue and Mansun-Johnson called him to her office and ripped up his grievance, telling
3 The meaning of Burk’s reference to “State browns” is unclear.
Burk to “stop writing about the State Drug Program.” (Id.) He alleges that since filing
the grievance, his “state browns have been ripped along with my boxers (underwear).
(Id. (parenthetical in original).) As relief on his claims, Burk seeks to be entered into
the drug program and demands $50,000 in money damages. (Id. at 5.)
II
Because Burk appears unable to pay the full amount of the filing fee in advance,
the Court will granted him leave to proceed in forma pauperis.4 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); Shorter v. United
States, No. 20-2554, 2021 WL 3891552, at *5 (3d Cir. Sept. 1, 2021) (‘“At this early
stage of the litigation,’ ‘[the Court will] accept the facts alleged in [the pro se] complaint
as true,’ ‘draw[] all reasonable inferences in [the plaintiff’s] favor,’ and ‘ask only
whether [that] complaint, liberally construed, . . . contains facts sufficient to state a
plausible [] claim.’” (quoting Perez v. Fenoglio, 792 F.3d 768, 774, 782 (7th Cir. 2015)).
Conclusory allegations do not suffice. Iqbal, 556 U.S. at 678. As Burk is proceeding pro
se, the Court construes his allegations liberally. Vogt v. Wetzel, 8 F.4th 182, 185 (3d
Cir. 2021) (citing Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 244-45 (3d Cir. 2013)).
4 Because he is a prisoner, Burk will be required to pay the full amount of the filing
fee in installments, as required by the Prison Litigation Reform Act.
“This means we remain flexible, especially ‘when dealing with imprisoned pro se
litigants[.]’” Id. (quoting Mala, 704 F.3d at 244). The Court will “apply the relevant
legal principle even when the complaint has failed to name it.” Id. However, ‘“pro se
litigants still must allege sufficient facts in their complaints to support a claim.’” Id.
(quoting Mala, 704 F.3d at 245).
III
The vehicle by which federal constitutional claims may be brought in federal
court is Section 1983 of Title 42 of the United States Code, which states in part:
Every person who, under color of any statute, ordinance, regulation,
custom, or usage, of any State or Territory or the District of Columbia,
subjects, or causes to be subjected, any citizen of the United States or other
person within the jurisdiction thereof to the deprivation of any rights,
privileges, or immunities secured by the Constitution and laws, shall be
liable to the party injured in an action at law, suit in equity, or other proper
proceeding for redress.
42 U.S.C. § 1983. “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
Burk has named each Defendant, all of whom are employees of the
Commonwealth of Pennsylvania, in their official capacities only and seeks money
damages as part of his relief. The claims for money damages asserted against
Commonwealth officials in their official capacities may not proceed. The Eleventh
Amendment bars suits against a state and its agencies in federal court that seek
monetary damages. See Pennhurst State Sch. and Hosp. v. Halderman, 465 U.S. 89,
99-100 (1984); A.W. v. Jersey City Public Schs., 341 F.3d 234, 238 (3d Cir. 2003). Suits
against state officials acting in their official capacities are really suits against the
employing government agency, and as such, are also barred by the Eleventh
Amendment. A.W., 341 F.3d at 238; see also Hafer v. Melo, 502 U.S. 21, 25 (1991); Will
v. Mich. Dep’t of State Police, 491 U.S. 58, 70-71 (1989). As the Commonwealth has not
waived its Eleventh Amendment immunity for lawsuits filed in federal court, see 42 Pa.
Cons. Stat. § 8521-22, it and its departments, as well as their officials sued in their
official capacities, are immune from suits filed in federal court.5
B
Burk also seeks admission into the drug program. The Court understands this
to be a request for prospective injunctive relief. Commonwealth officials may be sued in
their official capacities where the plaintiff seeks prospective injunctive relief to stop an
ongoing violation of federal law. See Ex parte Young, 209 U.S. 123 (1908); Pa. Fed’n of
Sportsmen’s Clubs, Inc. v. Hess, 297 F.3d 310, 323 (3d Cir. 2002). Courts reason that
injunctions against state officials actively violating federal laws are “‘necessary to
vindicate the federal interest in assuring the supremacy of that law,’” despite the
Constitution’s prohibition against suits against the state. Koslow v. Pennsylvania, 302
F.3d 161, 178 (3d Cir. 2002) (quoting Green v. Mansour, 474 U.S. 64, 68 (1985)). In
Koslow, the Third Circuit held that because “the Eleventh Amendment has not been
interpreted to bar a plaintiff’s ability to seek prospective relief against state officials for
5 Burk may not understand that by checking the box on the form Complaint
indicating “official capacity,” he could not obtain monetary relief. Because the Court cannot
say at this time that Burk can never assert plausible claims for money damages against the
Defendants in their individual capacities, the Order that follows will give Burk the option of
amending his claims or pursuing only his official capacity claims for prospective injunctive
relief.
violations of federal law,” a plaintiff may sue a state official for ongoing violations of the
Americans with Disabilities Act. Id. at 178.
To avoid the Eleventh Amendment bar, however, “[t]he relief sought must be
prospective, declaratory, or injunctive relief governing an officer’s future conduct and
cannot be retrospective, such as money damages.” MCI Telecomm. Corp. v. Bell Atl.
Pa., 271 F.3d 491, 506 (3d Cir. 2001) (citing Pennhurst State Sch. & Hosp., 465 U.S. at
102. “In determining whether the doctrine of Ex parte Young avoids an Eleventh
Amendment bar to suit, a court need only conduct a straightforward inquiry into
whether [the] complaint alleges an ongoing violation of federal law and seeks relief
properly characterized as prospective.” Verizon Md., Inc. v. Pub. Serv. Comm’n, 535
U.S. 635, 645 (2002) (alteration in original) (citation omitted).
While expressing no opinion on the merits of Burk’s allegation that he was
denied entry into the drug program based on his race, the Court finds the allegations
assert a plausible claim. “The Equal Protection Clause of the Fourteenth Amendment
commands that no State shall ‘deny to any person within its jurisdiction the equal
protection of the laws,’ which is essentially a direction that all persons similarly
situated should be treated alike.” City of Cleburne v. Cleburne Living Ctr., 473 U.S.
432, 439 (1985) (quoting Plyler v. Doe, 457 U.S. 202, 216 (1982)). To establish an equal
protection violation, a prisoner must allege “that he was treated differently than other
similarly situated inmates, and that this different treatment was the result of
intentional discrimination based on his membership in a protected class.” Mack v.
Warden Loretto FCI, 839 F.3d 286 (3d Cir. 2016) (citing Hassan v. City of New York,
804 F.3d 277, 294, 298 (3d Cir. 2015)). “Persons are ‘similarly situated’ for purposes of
an equal protection claim when ‘they are alike in all relevant aspects.’” Startzell v. City
of Philadelphia, 533 F.3d 183, 203 (3d Cir. 2008) (emphasis omitted). Additionally, to
state a race-based equal protection claim, a plaintiff must allege that defendants were
motivated by racial animus. W.B. v. Matula, 67 F.3d 484, 503 (3d Cir. 1995) (citing
Griffin v. Breckenridge, 403 U.S. 88, 102 (1971); Pratt v. Thornburgh, 807 F.2d 355, 357
(3d Cir. 1986)). Burk’s claim that he was denied entry into the drug program based on
his race merits a response.
IV
For the reasons stated, Burk’s claim for money damages against the Defendants
on his official capacity claim will be dismissed. He will be granted leave to file an
amended complaint in the event he can allege plausible claims for money damages
against the Defendants in their individual capacities. The Court is prepared to direct
service of the Complaint on Burk’s claim for prospective injunctive relief. Burk may
notify the Court that he wishes to proceed on this claim only. If Burk chooses not to file
an amended complaint, the Court will direct service on Burk’s claim for prospective
injunctive relief on all Defendants for a responsive pleading. An appropriate Order
follows.
BY THE COURT:
__/_s_/ _G__e_r_a_l_d_ _J_._ P__a_p_p__e_r_t __________________
GERALD J. PAPPERT, J.