Victor v. Lt. Moss

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF PENNSYLVANIA

WILLIAM VICTOR, : CIVIL ACTION NO. 1:20-cv-425

Plaintiff :

v. : (MANNION, D.J.)

JOHN WETZEL, et al., : (CARSLON, M.J.)

Defendants :

MEMORANDUM

Presently before the court is Magistrate Judge Martin C. Carlson’s report and

recommendation (hereinafter “report”), which recommends dismissal of Claim 2 of

Plaintiff William Victor’s complaint. Plaintiff has filed objections to the report. (Doc.

14). For the following reasons, the report will be adopted and the plaintiff’s

objections will be overruled.

I. BACKGROUND

At all relevant times, plaintiff was a state prisoner at the Pennsylvania State

Correctional Institution (“SCI”) – Dallas and then at SCI-Frackville. (Doc. 1, Compl.)

On September 17, 2019, a physical altercation occurred between plaintiff and

prison staff at SCI-Dallas. (Id. at 5). Plaintiff claims to have suffered serious injuries

due to the altercation. (Id.) On September 19, 2019, plaintiff was transferred to

SCI-Frackville, where he received treatment for the injuries he alleges that he

sustained in the altercation. (Id. at 6).

Plaintiff filed a three-claim pro se civil rights case regarding the altercation

and his subsequent medical treatment. The first claims asserts assault and battery,

unnecessary use of force, and other related causes of action with regard to the

prison staff who allegedly assaulted him. (Id. at 5). The second claim is a hybrid

cause of action of supervisory liability/failure to protect asserted against prison

supervisory officials who had no apparent direct involvement in any of the other

matters set forth in the complaint. (Id. at 6). The third claim asserts a cause of

action for inadequate medical care. (Id. at 6-8). Along with the complaint, the

plaintiff filed a motion to proceed in forma pauperis. (Doc. 2).

Judge Carlson performed a preliminary screening of the pro se complaint

pursuant to 28 U.S.C. §1915A. He concluded that plaintiff had sufficiently pleaded

Claim 1 and Claim 3, the excessive force claim and the medical negligence claims.

He found, however, that Claim 2 involving supervisory liability was insufficient and

should be dismissed. (Doc. 8, Report and Recommendation). The report also

conditionally granted the in forma pauperis motion. Plaintiff has filed objections to

the report’s suggestion that his supervisory liability claim should be dismissed,

bringing the case to its present posture.

II. STANDARD OF REVIEW

When objections are timely filed to the report and recommendation of a

magistrate judge, the district court reviews de novo those portions of the report to

which objections are made. 28 U.S.C. §636(b)(1); Brown v. Astrue, 649 F.3d 193,

195 (3d Cir. 2011). Although the standard of review is de novo, the extent of review

is committed to the sound discretion of the district judge and the court may rely on

the magistrate judge’s recommendations to the extent it deems proper. Rieder v.

Apfel, 115 F. Supp. 2d 496, 499 (M.D. Pa. 2000) (citing United States v. Raddatz,

447 U.S. 667, 676 (1980)).

For those sections of the report to which no objection is made, the court

should, as a matter of good practice, “satisfy itself that there is no clear error on

the face of the record in order to accept the recommendation.” FED. R. CIV. P. 72(b),

advisory committee notes. See also Univac Dental Co. v. Dentsply Int’l Inc., 702

F. Supp. 2d 465, 469 (M.D. Pa. 2010) (citing Henderson v. Carlson, 812 F.2d 874,

878 (3d Cir. 1987) (explaining that judges should give some review to every report

and recommendation)). Nonetheless, regardless of whether or not timely

objections are made to the report, the district court may accept, not accept, or

modify, in whole or in part, the magistrate judge’s findings or recommendations.

28 U.S.C. §636(b)(1); FED. R. CIV. P. 72(b)(3).

III. DISCUSSION

The court must conduct a preliminary review of pro se complaints brought by

plaintiffs seeking to proceed in forma pauperis. See 28 U.S.C. §1915(e)(2)(B)(ii).

Additionally, the law requires that a court conduct a preliminary review where a pro

se prisoner seeks to recover from government officials. 28 U.S.C. §1915A. The

purpose of these screenings is to dismiss cases at an early stage if they are

frivolous, malicious or fail to state a claim upon which relief may be granted.

Specifically, the law provides:

(a) Screening. – The court shall review, before

docketing, if feasible or, in any event, as soon as

practicable after docketing, a complaint in a civil action in

which a prisoner seeks redress from a governmental entity

or officer or employee of a governmental entity.

(b) Grounds for dismissal. – On review, the court

shall identify cognizable claims or dismiss the complaint, or

any portion of the complaint, if the complaint –

(1) is frivolous, malicious, or fails to state a claim

upon which relief may be granted; or

(2) seeks monetary relief from a defendant who is

immune from such relief.

28 U.S.C. §1915A.

The court, when reviewing a complaint for failure to state a claim pursuant to

1915A or 28 U.S.C. §1915(e)(2)(B), applies the legal standard set forth in Rule

12(b)(6) of the Federal Rules of Civil Procedure. Mitchell v. Dodrill, 696 F. Supp.

2d 454, 471 (M.D. Pa. 2010); Banks v. County of Allegheny, 568 F. Supp. 2d 579,

588 (W.D. Pa. 2008).

The standard set forth regarding a motion to dismiss under Rule 12(b)(6),

requires the court to test the sufficiency of a complaint’s allegations. All well-

pleaded allegations of the complaint must be viewed as true and in the light most

favorable to the non-movant to determine whether, “‘under any reasonable reading

of the pleadings, the plaintiff may be entitled to relief.’” Colburn v. Upper Darby

Twp., 838 F.2d 663, 665-66 (3d Cir. 1988) (quoting Estate of Bailey by Oare v.

Cnty. of York, 768 F.2d 503, 506 (3d Cir. 1985)). The plaintiff must describe

“‘enough facts to raise a reasonable expectation that discovery will reveal evidence

of’ [each] necessary element” of the claims alleged in the complaint. Phillips v.

Cnty. of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008) (quoting Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 556 (2007)). Moreover, the plaintiff must allege facts that

“justify moving the case beyond the pleadings to the next stage of litigation.” Id. at

234-35. In evaluating the sufficiency of a complaint, the court may also consider

“matters of public record, orders, exhibits attached to the complaint and items

appearing in the record of the case.” Oshiver v. Levin, Fishbein, Sedran & Berman,

38 F.3d 1380, 1384 n.2 (3d Cir. 1994) (citations omitted). The court does not have

to accept legal conclusions or unwarranted factual inferences. See Curay-Cramer

v. Ursuline Acad. of Wilmington, Del., Inc., 450 F.3d 130, 133 (3d Cir. 2006) (citing

Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997)).

The federal rules require only that plaintiff provide “a short and plain

statement of the claim showing that the pleader is entitled to relief,” a standard

which “does not require detailed factual allegations,” but a plaintiff must make “a

showing, rather than a blanket assertion, of entitlement to relief that rises above

the speculative level.” McTernan v. N.Y.C., 564 F.3d 636, 646 (3d Cir. 2009)

(citations and internal quotations and quotation marks omitted). The “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

Twombly, 550 U.S. at 570). Such “facial plausibility” exists “when the plaintiff

pleads factual content that allows the court to draw the reasonable inference that

the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S.

at 556). “[T]he factual detail in a complaint [cannot be] so undeveloped that it does

not provide a defendant the type of notice of claim which is contemplated by Rule

8.” Phillips, 515 F.3d at 232 (citation omitted). “Though a complaint ‘does not need

detailed factual allegations, . . . a formulaic recitation of the elements of a cause of

action will not do.’” DelRio-Mocci v. Connolly Props., Inc., 672 F.3d 241, 245 (3d

Cir. 2012) (quoting Twombly, 550 U.S. at 555).

Instantly, the report recommends dismissal of Claim 2 of plaintiff’s complaint.

Claim 2 makes allegations against seven senior correctional officials who had no

apparent direct involvement in the altercation at issue or the subsequent medical

treatment. (Doc. 1, Compl. at 6). The plaintiff names the following with regard to

Claim 2: John Wetzel, the Secretary of Corrections; Shirley Smeal, Deputy

Secretary; James Barnacle, Director of Investigations; John Wenerowicz, Regional

Deputy Secretary; Superintendent SCI-Dallas Ransom; Deputy Superintendent at

SCI-Dallas Aponte and John Doe, unnamed corrections security captain, SCI-

Dallas. (Id.)

As noted by the report, Claim 2 can be broken down into two separate

causes of action, a supervisory/failure to train, oversee or supervise claim and an

Eighth Amendment failure to protect claim. We will discuss each in turn.

A. Supervisory/Failure to Train, Oversee or Supervise Claims

The first cause of action in Claim 2 alleges that the defendants are liable

based on being supervisors of the individuals who actually took part in the

altercation. The report analyzes this issue in two ways, first as direct supervisory

liability claim and second as failure to train, oversee or supervise claim. The report

concludes that neither is a properly plead cause of action. The court agrees.

1. Supervisory liability

The supervisory defendants cannot be held liable simply because they

supervised the individual actors. Liability for a constitutional violation is personal in

nature and is only imposed where specific allegations of personal direction or

actual knowledge and acquiescence in the challenged conduct exist. Robinson v.

City of Pittsburgh, 120 F.3d 1286 (3d Cir. 1997). Thus, vicariously liability or

respondeat superior liability cannot be the basis for liability. Evancho v. Fisher, 423

F.3d 347, 353 (3d Cir. 2005). “A plaintiff makes sufficient allegations of a

defendant’s personal involvement by describing the defendant’s participation in or

actual knowledge of and acquiescence in the wrongful conduct.” Chavarriaga v.

New Jersey Dep't of Corr., 806 F.3d 210, 222 (3d Cir. 2015).

Here, the report notes that the plaintiff’s complaint does not allege such

personal involvement. It is clear that it does not and that dismissal is appropriate

with regard to supervisory liability based upon this theory. Plaintiff’s objections do

not add any more to the facts that would justify not adopting the report on this

issue.

2. Failure to Train, Oversee or Supervise

The report next concludes that these supervisory defendants cannot be held

liable for a failure to train, oversee or supervise. Such liability is only available in

the following two limited circumstances: where the supervisors “established and

maintained a policy, practice or custom which directly caused [the] constitutional

harm,” or where they “participated in violating plaintiff’s rights, directed others to

violate them or, as the person[s] in charge, had knowledge of and acquiesced in

[their] subordinate’s violations.” A.M. ex rel. JMK v. Luzerne Cnty. Juvenlie

Detention Ctr., 372 F.3d 572, 586 (3d Cir. 2004). Here as pointed out in the report,

allegations of neither theory of liability is found in plaintiff’s complaint. The plaintiff’s

objections do nothing to remedy or justify the complaint’s shortfalls. Therefore, the

claim regarding failing to train, oversee or supervise will be dismissed.

B. Eighth Amendment Failure to Protect Claim

Next, Judge Carlson, construed Claim 2 of the complaint to include an Eighth

Amendment failure to protect claim. The complaint alleges that the supervisory

defendants failed to protect the plaintiff by not placing enough surveillance

cameras at the prison. Specifically, there was not a surveillance camera in the

intake area of the prison where the altercation occurred. (Doc. 1, Compl. at 6).

The law provides that:

For an inmate to prevail on an Eighth Amendment failure-

to-protect claim, two requirements must be met. First, the

prisoner must demonstrate “that he is incarcerated under

conditions posing a substantial risk of serious harm.”

[Famer v. Brannan, 511 U.S. 825, 834 (1994)]. . . . Second,

the prison officials involved must have a sufficiently

culpable state of mind. Id. at 838 (“[O]ur cases mandate

inquiry into a prison official's state of mind when it is

claimed that the official has inflicted cruel and unusual

punishment.”). Specifically, the inmate must show that the

official “knows of and disregards an excessive risk to

inmate health or safety; the official must both be aware of

facts from which the inference could be drawn that a

substantial risk of serious harm exists, and [he or she] must

also draw the inference.” Id.

Hamilton v. Leavy, 117 F.3d 742, 746 (3d Cir. 1997)

Thus, a plaintiff must plead and prove the following three elements to prevail

on a failure to protect claim: (1) a substantial risk of serious harm; (2) the

defendants' deliberate indifference to that risk; and (3) causation. Id. (citing

LaMarca v. Turner, 995 F.2d 1526, 1535 (11th Cir.1993)).

The pertinent factor here is deliberate indifference. The United States

Supreme Court has indicated that deliberate indifference may only be established

where a prison official knew of the risk to prisoner safety. Such knowledge comes

where “a substantial risk of inmate attacks was longstanding, pervasive, well-

documented, or expressly noted by prison officials in the past.” Farmer, 511 U.S.

at 842 (emphasis added).

Here, as noted by the report, such knowledge is not alleged and thus,

plaintiff’s Claim 2 must fail. Plaintiff’s objections state that the supervisory

defendants “knew [and] received complaints of being set upon by McCoy [and]

others in Dallas intake due to it being a ‘blind’ area for Dallas intake. Sgt. McCoy

to plan & frequently carry out similar attacks such as that raised herein[.]” (Doc.

14, Pl.’s Objections at 1). In support of this allegation of knowledge plaintiff

attaches two exhibits. The exhibits, however, are not sufficient to save plaintiff’s

claim. The first is plaintiff’s grievance regarding the incident at issue. (Id. at 3). The

second is a Department of Corrections decision that plaintiff be recorded at all

times by a hand-held camera for all movement out of his cell. (Id. at 4). Neither of

these exhibits, one of which was produced after the altercation at issue, and the

other which does not involve security cameras support plaintiff’s position. Thus,

neither relate to the supervisory defendants’ knowledge of a substantial risk to

plaintiff in the intake area due to a lack of camera. They certainly do not support a

finding that the need for protection was longstanding, pervasive, well-documented,

or expressly noted by prison officials in the past. Plaintiff’s objections therefore will

be overruled, and Claim 2 will be dismissed.

IV. Conclusion

Based upon the above reasoning, we will adopt Judge Carlson’s report and

recommendation and overrule plaintiff’s objections. Thus, Claim 2 will be

dismissed from plaintiff’s complaint. An appropriate order follows.

s/Malachy E. Mannion

MALACHY E. MANNION

United States District Judge

Date: May 11, 2020

20-425-01