NICHOLS v. OSEI

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

DIONA NICHOLS,

Plaintiff,

CIVIL ACTION

v. NO. 22-4613

JOSEPH OSEI, et al.,

Defendants.

PAPPERT, J. August 29, 2023

MEMORANDUM

Diona Nichols sued Correctional Sergeant Joseph Osei and the City of

Philadelphia alleging Sergeant Osei sexually assaulted her multiple times during her

incarceration within the Philadelphia Department of Prisons. In her Amended

Complaint, Nichols claims Eighth and Fourteenth Amendment violations against both

defendants, battery and intentional infliction of emotional distress against Sergeant

Osei, and negligence against the City of Philadelphia. The City moved to dismiss

Nichols’s claims against it, and the Court denies the motion in part and grants it in

part.

I

Diona Nichols was incarcerated in facilities run by the Philadelphia Department

of Prisons from February 2018 to October 2021. (Am. Compl. ¶ 4, ECF 14.) In August

2020, the City transferred all female inmates out of Riverside Correctional Facility

(“RCF”) and into either Mod-III or the Alternative & Special Detention – Central Unit

(“ASDCU”). (Id. at ¶¶ 8-12.) Until this transfer, Mod-III and ASDCU were used for

limited housing purposes and neither was equipped with a video surveillance system.

(Id. at ¶¶ 11–12.) Nichols alleges that “high-ranking PDP officials,” including

Commissioner Carney, approved the August 2020 reorganization and transfers and

that this decision was made despite a “widely recognized” reduction in officer

misconduct when cameras are used. (Id. at ¶¶ 13–15.)

Once transferred from RCF to Mod-III, Nichols was a block worker responsible

for certain tasks outside of her housing unit including, among others, cleaning the

Sergeant’s office and bathroom. (Id. at ¶¶ 8, 17–19.) Nichols alleges that, on three

separate occasions, Sergeant Osei made forceful sexual advances, threatened her

employment upon resistance, and sexually assaulted her. (Id. at ¶¶ 20–41.) Despite

fearing Sergeant Osei and potential retaliation for coming forward, Nichols eventually

reported the assaults to another officer. (Id. at ¶¶ 42–47.)

The Amended Complaint cites a Bureau of Justice Statistics Report finding a

14% increase in sexual victimization allegations between 2015 and 2018. (Id. at ¶ 51.)

Nichols claims specifically that sexual assault accusations within the PDP rose from 9

to 69 between 2018 and 2021 and that Commissioner Carney was “undoubtedly aware”

of this change but failed to “implement necessary corrective action.” (Id. at ¶¶ 58–59.)

She also alleges that the PDP failed to meet the standards established by the Prison

Rape Elimination Act (“PREA”) and were on notice of similar behavior by other guards:

that a PDP officer was transferred to a men’s facility after taking pictures of women

sleeping in the Mod-III facility, other officers were known to have sexual relationships

with inmates, and various staff members knew about ongoing inappropriate sexual

contact with inmates. (Id. ¶¶ 55–87.)

II

To survive dismissal under Federal Rule of Civil Procedure 12(b)(6), a complaint

“must contain 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) (quoting Bell Atl.

Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is facially plausible when the

facts pled “allow[ ] the court to draw the reasonable inference that [a] defendant is

liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. “[W]here the well-pleaded

facts do not permit the court to infer more than the mere possibility of misconduct, the

complaint has alleged—but it has not ‘show[n]’—‘that the pleader is entitled to relief.’ ”

Id. at 679 (quoting Fed. R. Civ. P. 8(a)(2)).

When the complaint includes well-pleaded factual allegations, the court “should

assume their veracity and then determine whether they plausibly give rise to an

entitlement to relief.” Connelly v. Lane Const. Corp., 809 F.3d 780, 787 (3d Cir. 2016)

(quoting Iqbal, 556 U.S. at 679). However, this “presumption of truth attaches only to

those allegations for which there is sufficient factual matter to render them plausible

on their face.” Schuchardt v. President of the U.S., 839 F.3d 336, 347 (3d Cir. 2016)

(internal quotation and citation omitted). “Conclusory assertions of fact and legal

conclusions are not entitled to the same presumption.” Id.

III

The City argues that Nichols has failed to properly state a Monell claim;

specifically that she does not allege a policy or custom, conduct by a policymaker, or, for

her failure-to-train and supervise claims, prior instances of misconduct. (Mot. 5–11,

ECF 14.)

A

1

A municipality is not subject to respondeat superior liability under § 1983 and

instead must itself cause the alleged constitutional violation. Monell v. New York City

Dep’t of Soc. Servs., 436 U.S. 658, 691 (1978); City of Canton v. Harris, 489 U.S. 378,

385 (1989). But it is considered a “person” within the meaning of that statute who can

be sued when an employee’s “execution” of an “official policy” or custom “inflicts” a

constitutional injury. See Monell, 436 U.S. at 690, 694.

A municipal policy is an official proclamation, policy or edict issued by a

municipal employee with “final authority” over policymaking. Forrest v. Parry, 930

F.3d 93, 105 (3d Cir. 2019). A municipal custom, by contrast, is “a given course of

conduct, although not endorsed or authorized by law, [that] is so well-settled and

permanent as virtually to constitute law.” Estate of Roman v. City of Newark, 914 F.3d

789, 798 (3d Cir. 2019) (quoting Bielevicz v. Dubinon, 915 F.2d 845, 850. (3d Cir. 1990)).

Pointing to an unconstitutional policy or custom is not enough, though. “A plaintiff

must also allege that the policy or custom was the ‘proximate cause’ of [the] injuries.”

Id. (citing Kneipp v. Tedder, 95 F.3d 1199, 1213 (3d Cir. 1996)).

2

Nichols argues there is a widespread custom of sexual misconduct among guards

at PDP. (Resp. Brief 5, ECF 16.) She claims that PDP had seen an increase in inmates’

sexual assault allegations against staff in recent years, including the 60 separate

assaults that occurred in 2021, and that Commissioner Carney and other senior

officials at PDP were aware of this alleged trend and disciplined offending officers. (Am

Compl. ¶¶ 55–62.) A plaintiff “need not demonstrate that their injuries were the direct

result of formal departmental procedures” to establish the nexus requirement, but

rather that “policymakers were aware of similar unlawful conduct in the past,” failed to

“take precautions against future violations,” and this failure, “at least in part, led to

their injury.” Bielevicz, 915 F.2d at 851. While it is up to the jury to determine

whether the City’s alleged inaction actually contributed to the “conduct at issue” here,

Nichols has, at least for now, adequately alleged the existence of a custom the City was

aware of, did not try to remedy, and that, at least in part, contributed to her injury. See

Estate of Roman, 914 F.3d at 798–799 (holding that an amended complaint alleging a

“continued official tolerance of repeated misconduct” using experiences, reports and

statistics sufficiently demonstrated an unconstitutional custom and that a plaintiff

need not identify a responsible decisionmaker at the pleading stage).

3

Nichols also contends that PDP’s decision to transfer inmates from RCF, which

had video surveillance, to Mod-III and ASDCU, which did not, is a policy decision giving

rise to municipal liability. (Resp. Brief 11–12.) The PREA emphasizes the role video

surveillance plays in deterring sexual assault in prisons, particularly in light of staffing

shortages. See 28 C.F.R. 115.13(a)–(c). Nichols alleges that Commissioner Carney and

senior PDP officials decided to transfer inmates to facilities without surveillance

systems, notwithstanding staffing shortages, and that this decision “allowed” Sergeant

Osei to abuse Ms. Nichols without detection. (Am. Compl. ¶¶ 13, 79.) Viewed in a light

most favorable to Nichols, PDP’s decision to transfer inmates to a facility without video

surveillance despite staffing shortages establishes at this stage a policy decision that

proximately caused her injuries. Estate of Roman, 914 F.3d at 798.

B

1

Municipalities can face § 1983 liability for constitutional violations arising from

a failure to train or supervise employees if that failure constitutes “deliberate

indifference” to people’s rights. Forrest v. Parry, 930 F.3d 93, 106 (3d Cir. 2019);

Harris, 489 U.S. at 387–89; see also Bd. of Cnty. Commr’s of Bryan Cnty. v. Brown, 520

U.S. 397, 410 (1997) (deliberate indifference requires “proof that a municipal actor

disregarded a known or obvious consequence” of his action); Pembaur v. City of

Cincinnati, 475 U.S. 469, 483 (1986) (municipal liability under § 1983 attaches only

when a policymaker makes a “deliberate choice to follow a course of action” from

“various alternatives”).1

Deliberate indifference exists where (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 will “frequently

cause deprivation of constitutional rights.” Estate of Roman, 914 F.3d 789, 798 (3d Cir.

2019) (quoting Doe v. Luzerne Cnty., 660 F.3d 169, 180 (3d Cir. 2011)). Under this

theory the plaintiff need not demonstrate an unconstitutional policy or custom because

1 A policymaker has “final, unreviewable discretion to make a decision or take an action,” and

those decisions or actions “constrain the discretion of subordinates.” Watosn v. Abington Twp., 478

F.3d 144, 156 (3d Cir. 2007) (quoting Andrews v. City of Phila., 895 F.2d 1469, 1481 (3d Cir. 1990)

(superseded in part by statute on other grounds)); Kniepp v. Tedder, 95 F.3d 1199, 1213 (3d Cir.

1996) (quoting Bielevicz v. Dubinon, 915 F.2d 845, 850 (3d Cir. 1990)).

the policy-or-custom and failure-or-inadequacy theories of liability are “distinct.”

Forrest, 930 F.3d at 105–06.

A plaintiff asserting a failure-to-train or supervise theory instead must

ordinarily identify a “pattern of similar constitutional violations by untrained

employees” that “puts municipal decisionmakers on notice that a new program is

necessary.” Johnson v. City of Phila., 975 F.3d 394, 403 (3d Cir. 2020) (internal

quotations omitted). The shortcomings must be “closely related” to and have “actually

caused” the alleged constitutional violation. Harris, 489 U.S. at 390–91 (failure to train

claims must show the “adequacy of the training program in relation to the tasks” the

employee performs); see also Brown, 520 U.S. at 409–10 (a “high degree of

predictability” can support finding of causation).

2

Nichols argues that her failure to train and supervise claims are “based on a

failure of PDP to implement adequate staffing, surveillance, and supervision to such

[extent] that sexual misconduct by PDP officers would be prevented or discovered.”

(Resp. Brief 9.) The amended complaint adequately alleges that PDP was aware of the

increasing number of sexual assault claims alleged against their employees; that

employees have historically mishandled the situation when confronted with it, given

the disciplinary actions PDP allegedly took against guards; and that the wrong choice

will result in the violation of inmates’ constitutional rights. (Am Compl. ¶¶ 55–63.)

This, paired with PDP’s alleged failure to properly implement the PREA with respect to

staffing and video surveillance systems could rise to deliberate indifference.

While a pattern is not necessary for a finding of deliberate indifference,

considering the facts in a light most favorable to Nichols, the alleged examples of sexual

abuse and harassment at PDP by correctional officers establishes a “pattern of similar

violations by untrained” or unsupervised employees and the alleged disciplinary

measures indicate that municipal decisionmakers were “on notice that a new program

was necessary. . . .” See Johnson, 975 F.3d at 403 (noting that while a pattern is

“ordinarily” required to establish deliberate indifference, plaintiffs may “otherwise”

show that a failure to train would “likely” result in the violation of constitutional rights)

(quoting Harris, 489 U.S. 378, 390). Although municipalities can initially assume that

their employees will not engage in misconduct, “where there is a history of conduct

rendering this assumption untenable, city policymakers may display deliberate

indifference by doing so.” Carter v. City of Philadelphia, 181 F.3d 339, 357 (3d Cir.

1999). Because Nichols has pleaded multiple known instances of assault by PDP

corrections officers, she has at minimum established a plausible basis for PDP’s

constructive knowledge of the risk. See Brown, 520 U.S. at 412. These allegations

amount to a “plausible nexus” or “affirmative link” between the inadequacies in PDP’s

training and supervision and the assaults against her. See Bielevicz, 915 F.2d at 850.

IV

A

Under Pennsylvania’s Political Subdivisions Tort Claims Act, local agencies are

not liable for negligence unless the conduct falls under one of nine narrow exceptions.

42 Pa. C.S. §§ 8542(b). Nichols argues that the City is liable under the third exception,

claims that pertain to the “care, custody or control of real property” because it failed to

“adequately equip Mod-III with surveillance cameras.” (Resp. Brief 12–14); 42 Pa. C.S.

§ 8542(b)(3); (Am. Compl. ¶ 107).

The real property exception applies when the alleged defect giving rise to the

claim was related to an “intended use [of the property that] was a specific, readily

identifiable, distinguishable use.” Bradley v. Franklin County Prison, 674 A.2d 363,

366 (Pa. Commw. Ct. 1996). The alleged defect must be a flaw of the property itself

such that it renders the property “unsafe for its intended purpose . . . .” Thornton v.

Philadelphia Housing Authority, 4 A.3d 1143, 1151 (Pa. Commw. Ct. 2010).

Other courts in this District have narrowly construed the exception, declining to

extend it to circumstances under which the physical condition of the land or building

did not itself cause the injury. See, e.g., Hagwood v. City of Philadelphia, 604 F. Supp.

3d 293, 300–301 (E.D. Pa. 2022) (holding than an alleged defect allowing a third party

to injure plaintiff did not fall under the scope of the real property exception); Bowers v.

City of Philadelphia, No. 06-3229, 2008 WL 5210256, at *7 (E.D. Pa. Dec. 12, 2008)

(finding that negligence claims arising out of prison overcrowding did not trigger the

real property exception because plaintiff did not allege the building itself was unsafe for

its regular use; collecting cases); Hopson v. Cheltenham Twp., No 90-0587, 1990 WL

102883, at *11 (E.D. Pa. July 17, 1990) (holding that the real property exception does

not apply to defective security cameras; it only applies when the condition of the

property itself causes, not merely facilitates, an injury).

B

Nichols’s incarceration in the Mod-III facility was an intended use of the

property; as alleged, it is a prison intended to house inmates. The alleged defect,

however, is not clearly a flaw of the property that renders it “unsafe for its intended

purpose.” Thornton, 4 A.3d at 1151. The presence or absence of security cameras does

not alter the “physical condition” of the prison.

The cases Nichols cites in support of her argument are distinguishable. Unlike

padded safety mats on a concrete wall, non-slip floors in a shower, or even poor upkeep

leading to a rat infestation, the presence (or absence) of a surveillance system does not

alter the physical condition of PDP’s real property. See (Resp. Brief 13) (citing

Brewington v. City of Philadelphia, 199 A.3d 348, 350 (Pa. 2018); Bradley, 674 A.2d at

366; and Thompson v. City of Philadelphia, No. 20-3134, 2021 WL 2156397, at *5 (E.D.

Pa. May 27, 2021)). While at least one court in this District recently contemplated

surveillance cameras in the context of the real property exception, its analysis centered

around whether preexisting cameras were themselves considered “real property” such

that their inoperability was a negligent defect, not whether the absence of a system

rendered a larger property defective. See B.D. v. Downingtown Area Sch. Dist., No. 15-

6375, 2016 WL 3405460, at * 9 (3d Cir. June 21, 2016) (declining to resolve the

question, finding it implausible that the alleged injuries were causally related to

malfunctioning cameras). It would be futile for Nichols to attempt to amend her claim

under the PSTCA. See Harris v. Steadman, 160 F. Supp. 3d 814, 817 (E.D. Pa. 2016)

(citing Anderson v. City of Philadelphia, 65 F. App’x 800, 801 (3d Cir. 2003)).

An appropriate Order follows.

BY THE COURT:

/s/ Gerald J. Pappert

GERALD J. PAPPERT, J.