# FELDSER v. CURRAN-FROMHOLD CORRECTIONAL FACILITY

> District Court, E.D. Pennsylvania · March 15, 2022

URL: https://www.frixlaw.com/law-library/cases/10402910

## Case

- **Court:** District Court, E.D. Pennsylvania
- **Decided:** March 15, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10402910. Public record. Not legal advice.