# Hagerty v. Smith

> District Court, M.D. Pennsylvania · March 10, 2021

URL: https://www.frixlaw.com/law-library/cases/10409907

## Case

- **Court:** District Court, M.D. Pennsylvania
- **Decided:** March 10, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10409907

## How later opinions describe it (automated extraction)

- holding that individuals are not liable under Title II because it prohibits discrimination in programs of a “public entity” or discrimination “by any such entity” and “public entity” is not defined in Title II to include individuals

## Opinion text

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA

DAWN HAGERTY, :

Plaintiff : CIVIL ACTION NO. 3:18-1973

v. : (JUDGE MANNION)

ROBERT SMITH, et al., :

Defendants :

MEMORANDUM
I. BACKGROUND
Plaintiff, Dawn Hagerty, an inmate confined at the State Correctional
Institution, Muncy, Pennsylvania, (“SCI-Muncy”), filed the above caption civil
rights action pursuant to 42 U.S.C. §1983. (Doc. 1). The action proceeds via
an amended complaint. (Doc. 33). The named Defendants are the following
SCI-Muncy employees: Superintendent Robert Smith, Security Captain S.
Waltmen, Lieutenant Jennifer Beuchat and Dr. Robert Sena1. Id.
Presently before the Court is a motion to dismiss, filed on behalf of
Defendants Robert Smith and Captain S. Waltman. (Doc. 34). The motion is

1 Upon consideration of Plaintiff’s failure to provide an accurate
address for Defendant, Dr. Robert Sena, so that timely service may be
effectuated, this Defendant will be dismissed from the above captioned
action pursuant to F.R.C.P. 4(m).
fully briefed and, for the reasons that follow, the Court will grant Defendants’
motion to dismiss.

II. ALLEGATIONS IN AMENDED COMPLAINT
Plaintiff states that on July 17, 2017, she “had a seizure in common

room” and “Lt. Beuchat and numerous staff brought camra (sic).” (Doc. 33,
Amended Complaint). Plaintiff claims that “when [she] came out of seizure
[she] had boot prints on socks.” Id. She claims that an “investigation
confirmed it was Lt. Beuchat” and that he “did unnecessary force.” Id.

Plaintiff further alleges that “Dr. Robert Sena “constantly retaliating
because of suit and continue[s] to cut [her] off [her] Phyc (sic) meds.” Id.
Plaintiff claims that she is “a ‘D’ Code which is serverley (sic) mental ill.” Id.

Finally, Plaintiff alleges that “Capt. Waltman ordered her a TV and
another white shirt to sign a waiver of lawsuit.”2 Id.
For relief, Plaintiff seeks compensatory and punitive damages for
violations of her Eighth and Fourteenth Amendment rights, as well as

2 Plaintiff’s original complaint sheds light on this allegation, in that
Plaintiff indicates that after she filed a grievance, Defendant Waltman
investigated Plaintiff’s grievance, substantiated her claims and demoted Lt.
Beuchat. (Doc. 1 at 4).
violations of the American with Disabilities Act (“ADA”) and a State Created
Danger Theory. Id.

III. MOTION TO DISMISS
Fed.R.Civ.P. 12(b)(6) authorizes dismissal of a complaint for “failure to

state a claim upon which relief can be granted.” Under Rule 12(b)(6), we
must “accept all factual allegations as true, construe the complaint in the light
most favorable to the plaintiff, and determine whether, under any reasonable
reading of the complaint, the plaintiff may be entitled to relief.” Fowler v.

UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009)(quoting Phillips v.
County of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008)). While a complaint
need only contain “a short and plain statement of the claim,” Fed.R.Civ.P.

8(a)(2), and detailed factual allegations are not required, Bell Atlantic Corp.
v. Twombly, 550 U.S. 544, 555 (2007), a complaint must plead “enough facts
to state a claim to relief that is plausible on its face.” Id. at 570. “The
plausibility standard is not akin to a ‘probability requirement,’ but it asks for

more than a sheer possibility that a defendant has acted unlawfully.” Ashcroft
v. Iqbal, 556 U.S. 662 (2009) (quoting Twombly, 550 U.S. at 556). “[L]abels
and conclusions” are not enough, Twombly, 550 U.S. at 555, and a court “is

not bound to accept as true a legal conclusion couched as a factual
allegation.” Id. (quoted case omitted). Thus, “a judicial conspiracy claim must
include at least a discernible factual basis to survive a Rule

12(b)(6) dismissal.” Capogrosso v. The Supreme Court of New Jersey, 588
F.3d 180, 184 (3d Cir. 2009) (per curiam).
In resolving the motion to dismiss, we thus “conduct a two-part

analysis.” Fowler, supra, 578 F.3d at 210. First, we separate the factual
elements from the legal elements and disregard the legal conclusions. Id. at
210-11. Second, we “determine whether the facts alleged in the complaint
are sufficient to show that the plaintiff has a “plausible claim for relief”.” Id. at

211 (quoted case omitted).

IV. DISCUSSION

A. Personal Involvement
In a 1983 civil rights action, the Plaintiff must prove the following two
essential elements: (1) that the conduct complained of was committed by a
person acting under color of state law; and (2) that the conduct complained

of deprived the Plaintiff of rights, privileges or immunities secured by the law
or the Constitution of the United States. Parratt v. Taylor, 451 U.S. 527
(1981); Kost v. Kozakiewicz, 1 F.3d 176, 184 (3d Cir. 1993). Further, Section

1983 is not a source of substantive rights. Rather, it is a means to redress
violations of federal law by state actors. Gonzaga Univ. v. Doe, 536 U.S. 273,
284–85 (2002).

It is well established that personal liability under section 1983 cannot
be imposed upon a state official based on a theory of respondeat superior.
See, e.g., Rizzo v. Goode, 423 U.S. 362 (1976); Hampton v. Holmesburg

Prison Officials, 1546 F.2d 1077, 1082 (3d Cir. 1976); Parratt, supra. It is
also well settled in the Third Circuit that personal involvement of defendants
in alleged constitutional deprivations is a requirement in a §1983 case and
that a complaint must allege such personal involvement. Id. Each named

defendant must be shown, through the complaint’s allegations, to have been
personally involved in the events or occurrences upon which Plaintiff’s claims
are based. Id. As the Court stated in Rode v. Dellarciprete, 845 F.2d 1195,

1207 (3d Cir. 1998):
A defendant in a civil rights action must have personal
involvement in the alleged wrongs.... [P]ersonal involvement can
be shown through allegations of personal direction or of actual
knowledge and acquiescence. Allegations of participation or
actual knowledge and acquiescence, however, must be made
with appropriate particularity. (Citations omitted).

A civil rights complaint must state time, place, and responsible
persons. Id. Courts have also held that an allegation seeking to impose
liability on a defendant based on supervisory status, without more, will not
subject the official to liability. See Rode, 845 F.2d at 1208.
Initially, the Court finds that Plaintiff’s Eighth Amendment claims of
excessive force against Defendants Smith and Waltman, should be

dismissed because these Defendants are not alleged to have sufficient
personal involvement in the alleged wrongdoing. As stated above, liability
cannot be predicated in a §1983 action solely on the operation of respondeat

superior. Evancho v. Fisher, 423 F.3d 347, 353 (3d. Cir. 2005). For the
Plaintiff’s claim to proceed successfully in the instant case, therefore, Plaintiff
would have to establish each Defendant acted with a culpable state of mind
to subject Plaintiff to cruel and unusual punishment, not merely that they

knew she was being exposed to ETS, i.e., negligence. See Caldwell v.
Luzerne County Corrections Facility Management Employees, 732
F.Supp.2d 458, 472 (M.D. Pa. 2010). Also, each named defendant must be

shown, through the Amended Complaint’s allegations, to have been
personally involved in the events or occurrences upon which Plaintiff’s claims
are based. We find that there is no indication that Defendant, Superintendent
Smith, outside of his supervisory role, ever had the required level of sufficient

personal interaction with the Plaintiff. Id.; Rode v. Dellarciprete, 845 F.2d
1195, 1207 (3d Cir. 1998). There are no facts pled which would conceivably
be considered acquiescence, as required by the cases cited above. Based

upon an application of the above standards, Plaintiff has failed to satisfy the
personal involvement requirement standard of Rode with respect to
Defendants Smith and Waltman, and they shall be dismissed.

B. Plaintiff’s Fourteenth Amendment Claim
Plaintiff alleges Defendant Waltman’s investigation into her grievance
and then offered her a waiver of release to sign, was in violation of her

Fourteenth Amendment due process rights.
Lawful incarceration brings about necessary withdrawal or limitation of
many privileges and rights. Jones v. North Carolina Prisoner’s Labor Union,
Inc., 433 U.S. 119, 125 (1977). Although prisoners do not shed all

constitutional rights at the prison gate, access to prison grievance
procedures is not a constitutionally mandated right. See Massey v. Helman,
259 F.3d 641, 647 (7th Cir. 2001) (“[T]he existence of a prison grievance

procedure confers no liberty interest on a prisoner.”); Hoover v. Watson, 886
F. Supp. 410, 418 (D. Del. 1995), aff’d, 74 F.3d 1226 (3d Cir. 1995) (holding
that if a state elects to provide a grievance mechanism, violations of its
procedures do not give rise to a §1983 claim). A prisoner’s constitutional right

to petition the government for redress of grievances is the right of access to
the courts, “which is not compromised by the prison’s refusal to entertain his
grievance.” Flick v. Alba, 932 F.2d 728, 729 (8th Cir. 1991).
The Plaintiff's allegations against Defendant Waltman relate to the
manner in which he handled his investigation into her grievance regarding

the conduct of Defendant, Lt. Beuchat. The Plaintiff takes issue with the
manner in which Defendant Waltman investigated the grievance and offered
a waiver, asserting that her Fourteenth Amendment due process rights have

been violated. However, if a state elects to provide prisoners with prison
grievance procedures, violations of those procedures do not give rise to a
due process violation. Massey, 259 F.3d at 647. Access to prison grievance
procedures is not constitutionally mandated. Id. Accordingly, the Court will

grant Defendant Waltman’s motion to dismiss Plaintiff’s Fourteenth
Amendment claim against him.
C. ADA Claim

Title II of the Americans With Disabilities Act (“ADA”) provides that “no
qualified individual with a disability shall, by reason of such disability, be
excluded from participation in or be denied the benefits of the services,
programs, or activities of a public entity, or be subjected to discrimination by

any such entity.” 42 U.S.C. §12132, As used in Title II of the ADA, “public
entity” is defined as: “(A) any State or local government; (B) any department,
agency, special purpose district, or other instrumentality of a State or States

or local government; and (C) the National Railroad Passenger Corporation,
and any commuter authority (as defined in section 103(8) of the Rail
Passenger Service Act [49 U.S.C.S. §24102(4) ] ).” 42 U.S.C. §12131(a).

State prisons fall squarely within the statutory definition of “public entity” in
Title II of the ADA. Pennsylvania Dep’t of Corrections v. Yeskey, 524 U.S.
206, 210 (1998). However, the plain language of §12132 applies only to

public entities not individuals. Yeskey v. Commonwealth, 76 F.Supp.2d 572,
575 (M.D.Pa. 1999) (holding that individuals are not liable under Title II
because it prohibits discrimination in programs of a “public entity” or
discrimination “by any such entity” and “public entity” is not defined in Title II

to include individuals). None of the moving defendants qualify as a public
entity. Therefore, the ADA is inapplicable, and this claim will be dismissed.
D. State-Created Danger Claim

Plaintiff asserts a “state-created danger” claim against all defendants,
under the Fourteenth and Eighth Amendments. See generally Kneipp v.
Tedder, 95 F.3d 1199, 1205 (3d Cir. 1996). Under the “state-created danger”
theory, “liability may attach where the state acts to create or enhance a

danger that deprives the plaintiff of his or her Fourteenth Amendment right
to substantive due process.” Morrow v. Balaski, 719 F.3d 160, 177 (3d Cir.
2013).
However, “if a constitutional claim is covered by a specific
constitutional provision, such as the Fourth or Eighth Amendment, the claim

must be analyzed under the standard appropriate to that specific provision,
not under the rubric of substantive due process.” United States v. Lanier, 520
U.S. 259, 272 n.7 (1997); see also Betts v. New Castle Youth Dev. Ctr., 621

F.3d 249, 260 (3d Cir. 2010). Here, it appears that Plaintiff’s state-created
danger claim under substantive due process is “covered” by the Eighth
Amendment’s protection against cruel and unusual punishment that
proscribes inmates from being incarcerated under conditions that pose a

substantial risk of serious harm, which Plaintiff asserts against Defendants
in her complaint. Thus, Plaintiff’s Eighth and Fourteenth Amendment “state-
created danger” claim will be dismissed sua sponte, in favor of proceeding

on the specific Eighth and Fourteenth constitutional provisions.

V. LEAVE TO AMEND
The Third Circuit has instructed that if a civil rights complaint is

vulnerable to dismissal for failure to state a claim, the district court must
permit a curative amendment, unless an amendment would be inequitable
or futile. Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002).
Here, it is clear from the facts alleged in the pro se amended complaint
that any attempt to file a second amend complaint against the moving

Defendants would be futile. See Spruill v. Gillis, 372 F.3d 218, 236 (3d Cir.
2004). Although the allegations may be scant, it is readily apparent that the
gist of Plaintiff’ complaint is the alleged excessive use of force by Defendant,

Lt. Beuchat, a claim that will proceed. Thus, the Court will dismiss the
Plaintiff’s §1983 claims against moving Defendants Smith and Waltman,
without leave to amend to file a second amended complaint.

VI. CONCLUSION
For the foregoing reasons, the Court will grant, without leave to amend,
the motion to dismiss, filed on behalf of Defendants, Superintendent Robert

Smith, and Security Captain Waltman, for failure to state a claim. Defendant,
Dr. Sena, will be dismissed from the above captioned action for failure to
timely serve pursuant to F.R.C.P. 4(m). A separate Order shall issue.

s/ Malachy E. Mannion
MALACHY E. MANNION
United States District Judge
DATE: March 9, 2021
18-1973-01

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10409907. Public record. Not legal advice.