FELDSER v. CURRAN-FROMHOLD CORRECTIONAL FACILITY

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

THOMAS FELDSER, :

Plaintiff, :

:

v. : CIVIL ACTION NO. 22-CV-0211

:

CURRAN FROMHOLD :

CORRECTIONAL FACILITY, :

Defendant. :

MEMORANDUM

RUFE, J. MARCH 15, 2022

In a prior Memorandum and Order, the Court dismissed the Complaint filed by Thomas

Feldser, a pretrial detainee currently housed at the Philadelphia Industrial Correctional Facility,

and granted him leave to file an amended complaint. Feldser v. Curran Fromhold Corr.

Facility, No. 22-211, 2022 WL 377399, at *1 (E.D. Pa. Feb. 8, 2022). The Complaint was

dismissed because the only named Defendant was Curran-Fromhold Correctional Facility

(“CFCF”), a prison facility that is not a “person” under 42 U.S.C. § 1983. Id. at *2. Feldser has

now returned with an Amended Complaint (“AC”) in which he names as Defendants

Commissioner of Philadelphia Prisons Blanche Carney, Warden John Delaney, the City of

Philadelphia, and “Medical-Corizon Health.” Am. Compl. [Doc. No. 8] at 2–3. Each are named

in their official capacities only. Id. For the following reasons, the Court will dismiss the AC

pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii).

I. FACTUAL ALLEGATIONS

Like those contained in his original Complaint, Feldser’s allegations in the AC are

extremely brief. He alleges “I got COVID-19. The Warden sent me to [the Detention Center]

Jail with 20 other inmates. I was transported to a unsafe and unclean Jail that was closed down

with no medical treatment.” Am. Compl. [Doc. No. 8] at 5.1 He also asserts “I didn’t receive

any treatment.” Id. He seeks $2 million in money damages due to post-traumatic stress disorder

and nightmares. Id.

II. STANDARD OF REVIEW

As the Court previously granted Feldser leave to proceed in forma pauperis, 28 U.S.C. §

1915(e)(2)(B)(ii) requires the Court to dismiss the Amended 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). “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.’” Shorter v. United States, 12 F.4th 366, 374 (3d Cir. 2021) (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 Feldser 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)).

1 The Court adopts the pagination supplied by the CM/ECF docketing system.

III. DISCUSSION

The Court understands Feldser to be asserting a constitutional claim based on the fact that

he contracted Covid-19 and the lack of medical care when he contracted Covid-19. Federal

constitutional claims may be brought in federal court under 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). In addition, “[a]

defendant in a civil rights action must have personal involvement in the alleged wrongs” to be

liable. See Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988); Dooley v. Wetzel, 957

F.3d 366, 374 (3d Cir. 2020) (quoting Rode, 845 F.2d at 1207) (“Personal involvement requires

particular ‘allegations of personal direction or of actual knowledge and acquiescence.’”). See

also Iqbal, 556 U.S. at 676 (explaining that “[b]ecause vicarious liability is inapplicable to . . . §

1983 suits, a plaintiff must plead that each Government-official defendant, through the official’s

own individual actions, has violated the Constitution”).

A. Claims against Philadelphia, Commissioner Carney, and Warden Delaney

Feldser’s AC names the City of Philadelphia as well as Defendants Carney and Delaney

in their official capacities. Claims against City officials named in their official capacity are

indistinguishable from claims against the City. See Kentucky v. Graham, 473 U.S. 159, 165-66

(1985) (“Official-capacity suits . . . ‘generally represent only another way of pleading an action

against an entity of which an officer is an agent.’”) (quoting Monell v. N.Y.C. Dept. of Soc.

Servs., 436 U.S. 658, 690, n. 55 (1978)). “[A]n official-capacity suit is, in all respects other than

name, to be treated as a suit against the entity.” Id. Thus, the official capacity claims against

Carney and Delaney are dismissed as duplicative of the claims against the City of Philadelphia.

See Stanek v. St. Charles Cmty. Unit Sch. Dist. No. 303, 783 F.3d 634, 644 (7th Cir. 2015) (“The

district court correctly dismissed these defendants in their official capacity because the Staneks

also sued the District.”); Love-Lane v. Martin, 355 F.3d 766, 783 (4th Cir. 2004) (“The district

court correctly held that the § 1983 claim against Martin in his official capacity as

Superintendent is essentially a claim against the Board and thus should be dismissed as

duplicative.”); see also Graham, 473 U.S. at 166 (“As long as the government entity receives

notice and an opportunity to respond, an official-capacity suit is, in all respects other than name,

to be treated as a suit against the entity.”).

The claim against the City is controlled by the United States Supreme Court’s decision in

Monell. Under Monell, to assert a § 1983 claim against a municipality a plaintiff must allege that

the municipality’s policy or custom caused the violation of his constitutional rights. 436 U.S. at

694. “To satisfy the pleading standard, [the plaintiff] must . . . specify what exactly that custom

or policy was.” McTernan v. City of York, PA, 564 F.3d 636, 658 (3d Cir. 2009). “‘Policy is

made when a decisionmaker possess[ing] final authority to establish municipal policy with

respect to the action issues an official proclamation, policy, or edict.’” Estate of Roman v. City

of Newark, 914 F.3d 789, 798 (3d Cir. 2019) (quoting Andrews v. City of Phila., 895 F.2d 1469,

1480 (3d Cir. 1990)). “‘Custom, on the other hand, can be proven by showing that a given

course of conduct, although not specifically endorsed or authorized by law, is so well-settled and

permanent as virtually to constitute law.’” Id. (quoting Bielevicz v. Dubinon, 915 F.2d 845, 850

(3d Cir. 1990)). For a custom to be the proximate cause of an injury, a plaintiff must establish

that the defendant “had knowledge of similar unlawful conduct in the past, failed to take

precautions against future violations, and that its failure, at least in part, led to [plaintiff’s]

injury.” Id. (internal quotations and alterations omitted). Allegations that simply paraphrase the

standard for municipal liability, are too vague and generalized to support a plausible claim. See,

e.g., Szerensci v. Shimshock, No. 20-1296, 2021 WL 4480172, at *7 (W.D. Pa. Sept. 30, 2021)

(“Plaintiffs’ conclusory allegation, which generally paraphrases the relevant standard, is

insufficient to state a claim for § 1983 liability under Monell.”) (citing cases).

A plaintiff may also state a basis for municipal liability by “alleging failure-to-

supervise, train, or discipline . . . [and alleging facts showing] that said failure amounts to

deliberate indifference to the constitutional rights of those affected.” Forrest v. Parry, 930 F.3d

93, 106 (3d Cir. 2019). “This consists of a showing as to whether (1) municipal policymakers

know that employees will confront a particular situation, (2) the situation involves a difficult

choice or a history of employees mishandling, and (3) the wrong choice by an employee will

frequently cause deprivation of constitutional rights.” Id. As the United States Court of Appeals

has stated,

“Ordinarily,” this requires a plaintiff to identify a “‘pattern of similar

constitutional violations by untrained employees’” that “puts municipal

decisionmakers on notice that a new program is necessary.” Id. at 223 (quoting

Connick v. Thompson, 563 U.S. 51, 62 (2011)). Otherwise, the plaintiff needs to

show that failure to [train] would “likely . . . result in the violation of

constitutional rights” — i.e., to show that “the need for more or different training

[was] so obvious.” City of Canton v. Harris, 489 U.S. 378, 390 (1989).

Johnson v. City of Phila., 975 F.3d 394, 403 (3d Cir. 2020). Feldser fails to allege that he

suffered a constitutional injury due to a policy or custom of the City of Philadelphia. For this

reason, his claim against the City and the duplicative official capacity claims against Carney and

Delaney are not plausible and will be dismissed.

Construing Feldser’s claims against Carney and Delaney liberally to assume he also

intended to bring his claims against them in their individual capacities because they are

supervisors in the Philadelphia prison system, his claims would still be implausible. A

“supervisor-defendant may be liable for unconstitutional acts undertaken by subordinates” if he

or she (1) “‘with deliberate indifference … established and maintained a policy, practice or

custom which directly caused [the] constitutional harm” or (2) “participated in violating the

plaintiff’s rights, directed others to violate them, or, as the person in charge, had knowledge of

and acquiesced in the subordinate’s unconstitutional conduct.” Barkes v. First Corr. Med., Inc.,

766 F.3d 307, 316 (3d Cir. 2014), reversed on other grounds by Taylor v. Barkes, 575 U.S. 822

(2015). Moreover, generalized allegations that a supervisory defendant is “in charge of” or

“responsible for” a facility are insufficient to allege personal involvement in an underlying

constitutional violation. See Saisi v. Murray, 822 F. App’x 47, 48 (3d Cir. 2020) (per curiam)

(“Saisi asserted that some defendants were ‘in charge of agencies that allowed this to happen,’

and that liability stemmed merely from defendants’ ‘belief’ that their conduct would be

‘tolerated.’ However, a director cannot be held liable ‘simply because of his position as the head

of the [agency].’” (quoting Evancho v. Fisher, 423 F.3d 347, 354 (3d Cir. 2005)). Feldser fails

to allege that Carney and Delaney with deliberate indifference created a policy that caused him

constitutional harm or that they directly participated in a violation of his rights.

The only specific allegation made by Feldser is that Warden Delaney transferred him to a

different prison. It is well-settled that prisoners have no inherent constitutional right to

placement in any particular prison, to any particular security classification, or to any particular

housing assignment. See Wilkinson v. Austin, 545 U.S. 209, 221–22 (2005) (holding that the

Constitution does not give rise to liberty interest in avoiding transfers to more adverse conditions

of confinement); Lane v. Tavares, No. 14-991, 2016 WL 7165750, at *16 (M.D. Pa. July 12,

2016) (same). Accordingly, this allegation is insufficient to assert a plausible claim.

Finally, to the extent that Feldser raises a claim based upon having contracted Covid-19

while incarcerated, that claim too is implausible. In its decision in Hope v. Warden York County

Prison, the United States Court of Appeals for the Third Circuit affirmed that “[t]o establish

deliberate indifference [in the COVID-19 context, the prisoner plaintiffs] must show the

Government knew of and disregarded an excessive risk to their health and safety.” 972 F.3d

310, 329 (3d Cir. 2020) (citing Nicini v. Morra, 212 F.3d 798, 811 (3d Cir. 2000)) (emphasis

added). The Court of Appeals further held that “[t]he context of the Government’s conduct is

essential to determine whether it shows the requisite deliberate indifference.” Id. at 329–30. In

evaluating this context, a reviewing court must defer to the expertise of both medical officials

and jail administrators. Id. The court must not assume a constitutional defect where concrete

action has been taken in response to the Covid-19 pandemic as constitutional rules “are not . . .

subject to mechanical application in unfamiliar territory.” Id. (quoting County of Sacramento v.

Lewis, 523 U.S. 833, 850 (1998)). The facility need not “eliminate all risk” of Covid-19, and

where the facility has taken concrete steps towards mitigating the risk of Covid-19, a prisoner

will fall “well short” of establishing that the facility and its staff were deliberately indifferent

toward his medical needs. Id. at 330–31. Accordingly, any claim based on Feldser’s contracting

Covid-19 is not plausible.

B. Claims against Corizon Health

Feldser has also named Corizon Health as a Defendant, presumably because it is a private

contractor that provides medical services in the Philadelphia prison system. The United States

Court of Appeals for the Third Circuit has held that “a private health company providing services

to inmates ‘cannot be held responsible for the acts of its employees under a theory of respondeat

superior or vicarious liability.’” Sims v. Wexford Health Sources, 635 F. App’x 16, 20 (3d Cir.

2015) (per curiam) (quoting Natale v. Camden Cnty. Corr. Facility, 318 F.3d 575, 583 (3d Cir.

2003)). Rather, in order to hold Corizon Health liable under § 1983, Feldser must allege Corizon

Health had “a relevant [] policy or custom, and that the policy caused the constitutional violation

[he] allege[s].” Natale, 318 F.3d at 583–84 (citing Bd. of Cty. Comm’rs of Bryan Cnty., Okla. v.

Brown, 520 U.S. 397, 404 (1997)); see also Lomax v. City of Phila., No. 13-1078, 2017 WL

1177095, at *3 (E.D. Pa. Mar. 29, 2017) (citations and quotations omitted) (“Because

[defendant] is [a] private company contracted by a prison to provide health care for inmates, . . .

it can only be held liable for constitutional violations if it has a custom or policy exhibiting

deliberate indifference to a prisoner’s serious medical needs.”). Because Feldser has failed to

allege that Corizon Health had a policy or custom that caused him a constitutional injury, this

claim is also not plausible.

IV. CONCLUSION

For the foregoing reasons, the Court will dismiss Feldser’s Amended Complaint.

Dismissal of the official capacity claims against Carney and Delaney will be with prejudice since

they are duplicative of the claims against the City of Philadelphia. Because he may yet be able

to allege plausible claims based on having contracted Covid-19 and the medical treatment he

received, all other claims will be dismissed without prejudice and the Court will grant Feldser

one final opportunity to cure the defects in his claims. An appropriate Order follows with

additional instruction on amendment.