Leaks, Jr. v. Pennsylvania Department of Corrections

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

KEVIN DONNELL LEAKS, JR., :

Plaintiff : No. 1:21-cv-00020

:

v. : (Judge Kane)

:

PENNSYLVANIA DEPARTMENT :

OF CORRECTIONS, et al., :

Defendants :

MEMORANDUM

Presently before the Court are: (1) a motion to dismiss (Doc. No. 14) filed by Defendants

Terry Davis (“Davis”) and Jeff Troutman (“Troutman”); (2) a partial motion to dismiss (Doc.

No. 25) filed by Defendant Mike Nelligan (“Nelligan”); (3) a motion to dismiss (Doc. No. 30)

filed by Defendant Pennsylvania Department of Corrections (“DOC”); (4) a partial motion to

dismiss (Doc. No. 41) filed by Defendant Master William Harden (“Harden”);1 and (5) a partial

motion to dismiss (Doc. No. 45) filed by Defendant Paul DeSando (“DeSando”). For the

following reasons, the Court will grant the motions to dismiss.

I. BACKGROUND

Plaintiff, who is currently incarcerated at the State Correctional Institution Mahanoy in

Frackville, Pennsylvania (“SCI Mahanoy”), initiated the above-captioned action on January 6,

2021 by filing a complaint pursuant to 42 U.S.C. § 1983 against Defendants DOC, Troutman,

Davis, DeSando, Nelligan, and Harden. (Doc. No. 1.) In an administrative Order dated January

6, 2021, the Court directed Plaintiff to either pay the full filing fee or submit a motion for leave

to proceed in forma pauperis within thirty (30) days. (Doc. No. 3.) Plaintiff did not do so.

1 Defendant Harden indicates that his true name is Master William Harden and that Plaintiff

incorrectly identified him as William Harden. (Doc. No. 41 at 1.) The Court will direct the

Clerk of Court to amend the docket to reflect Defendant Harden’s true name.

Accordingly, in an Order dated February 11, 2021, the Court dismissed the action without

prejudice for Plaintiff’s failure to comply with the administrative Order. (Doc. No. 4.)

However, that same day, the Court received a motion for leave to proceed in forma pauperis

from Plaintiff. (Doc. No. 5.) In an Order dated February 12, 2021, the Court granted Plaintiff

leave to proceed in forma pauperis, vacated the February 11, 2021 dismissal Order, and directed

service of the complaint upon Defendants. (Doc. No. 6.) Defendants Troutman and Davis filed

waivers of service on March 10, 2021. (Doc. Nos. 9, 10.) In an Order dated March 17, 2021, the

Court directed the Clerk of Court to issue summonses so that the United States Marshal could

serve the complaint upon Defendants DOC, DeSando, Nelligan, and Harden. (Doc. No. 11.)

The summonses to Defendants DOC and Nelligan were returned as executed on May 11, 2021.

(Doc. Nos. 18, 19.)

The summonses issued to Defendants DeSando and Harden were returned as unexecuted

on May 11, 2021. (Doc. No. 20.) In an Order entered that same day, the Court directed Plaintiff

to show cause, within fourteen (14) days, why Defendants DeSando and Harden should not be

dismissed pursuant to Rule 4(m) of the Federal Rules of Civil Procedure. (Doc. No. 23.)

Plaintiff filed his response on May 24, 2021. (Doc. No. 22.) In an Order dated May 24, 2021,

the Court granted Plaintiff an extension of the Rule 4(m) period with respect to Defendants

DeSando and Harden and directed Defendants Troutman and Davis to provide, under seal, any

information they had about the current whereabouts of Defendants DeSando and Harden. (Doc.

No. 23.) Defendants Troutman and Davis provided that information on May 27, 2021. (Doc.

No. 31.) In an Order dated June 2, 2021, the Court directed that summonses again be issued and

that the United States Marshal serve Defendants DeSando and Harden at the addresses provided

under seal. (Doc. No. 32.) The summonses issued to both Defendants were returned as executed

on June 15 and 21, 2021. (Doc. Nos. 37, 38.)

Plaintiff’s complaint concerns alleged events that occurred while he was incarcerated at

the Keystone Correctional Services (“KCS”) community confinement center located in

Harrisburg, Pennsylvania. (Doc. No. 1 at 2.) Plaintiff maintains that on January 2, 2019, around

10:30 p.m., Defendants DeSando, Nelligan, and Harden used excessive force against him. (Id. at

6.) He alleges that Defendant DeSando choked him and that Defendants DeSando and Nelligan

screamed at him “in the face.” (Id.) Plaintiff avers that “600 to 700 pounds plus of pressure was

placed on [his] not fully recovered MCL/ACL and his back.” (Id.) He suggests that the incident

occurred because he returned “from a work pass late” and that he was suspected of smuggling

K2 (synthetic marijuana) inside KCS. (Id. at 8.) Plaintiff maintains that he was strip searched

during the incident as well. (Id. at 8-9.) He claims that he was transferred to the Dauphin

County Prison and criminally charged as a result of the incident. (Id. at 6.) Public records

indicate that on June 8, 2020, Plaintiff pled nolo contendere to simple assault, tampering

with/fabricating physical evidence, possession of a controlled substance, and use/possession of

drug paraphernalia. See Commonwealth v. Leaks, Docket No. CP-22-CR-0000571-2019

(Dauphin Cty. C.C.P.).2 Based on the foregoing, Plaintiff asserts violations of his Eighth and

Fourteenth Amendment rights, as well as state law claims for assault, battery, and “fraudulent

reports.” (Doc. No. 1 at 1.) He also suggests that his Fourth Amendment rights were violated by

the strip search. (Id. at 9.) As relief, Plaintiff seeks $10 million in damages. (Id. at 1-2.)

2 The Court may take judicial notice of this information, as it is publicly available on a

governmental website. See Vanderklok v. United States, 868 F.3d 189, 205 (3d Cir. 2017).

II. LEGAL STANDARDS

A. Motion to Dismiss Pursuant to Federal Rule of Civil Procedure 12(b)(6)

Federal notice and pleading rules require the complaint to provide the defendant notice of

the claim and the grounds upon which it rests. See Phillips v. Cty. of Allegheny, 515 F.3d 224,

232 (3d Cir. 2008). The plaintiff must present facts that, accepted as true, demonstrate a

plausible right to relief. See Fed. R. Civ. P. 8(a). Although Federal Rule of Civil Procedure

8(a)(2) requires “only a short and plain statement of the claim showing that the pleader is entitled

to relief,” a complaint may nevertheless be dismissed under Federal Rule of Civil Procedure

12(b)(6) for its “failure to state a claim upon which relief can be granted.” See Fed. R. Civ. P.

12(b)(6).

When ruling on a motion to dismiss under Rule 12(b)(6), the court accepts as true all

factual allegations in the complaint and all reasonable inferences that can be drawn from them,

viewed in the light most favorable to the plaintiff. See Ashcroft v. Iqbal, 556 U.S. 662, 679

(2009); In re Ins. Brokerage Antitrust Litig., 618 F.3d 300, 314 (3d Cir. 2010). To prevent

dismissal, all civil complaints must set out “sufficient factual matter” to show that their claims

are facially plausible. See Iqbal, 556 U.S. at 678; Fowler v. UPMC Shadyside, 578 F.3d 203,

210 (3d Cir. 2009). The plausibility standard requires more than a mere possibility that the

defendant is liable for the alleged misconduct: “[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.’” See Iqbal, 556 U.S. at 679 (citing Fed. R.

Civ. P. 8(a)(2)).

Accordingly, the Third Circuit has identified the following steps that a district court must

take when reviewing a 12(b)(6) motion: (1) identify the elements that a plaintiff must plead to

state a claim; (2) identify any conclusory allegations contained in the complaint that are “not

entitled” to the assumption of truth; and (3) determine whether any “well-pleaded factual

allegations” contained in the complaint “plausibly give rise to an entitlement to relief.” See

Santiago v. Warminster Twp., 629 F.3d 121, 130 (3d Cir. 2010) (internal citations and quotation

marks omitted). The Third Circuit has specified that in ruling on a Rule 12(b)(6) motion to

dismiss for failure to state a claim, “a court must consider only the complaint, exhibits attached

to the complaint, matters of public record, as well as undisputedly authentic documents if the

complainant’s claims are based upon these documents.” See Mayer v. Belichick, 605 F.3d 223,

230 (3d Cir. 2010) (citing Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d

1192, 1196 (3d Cir. 1993)).

In the context of pro se prisoner litigation, the court must be mindful that a document

filed pro se is “to be liberally construed.” See Estelle v. Gamble, 429 U.S. 97, 106 (1976). A

pro se complaint, “however inartfully pleaded,” must be held to “less stringent standards than

formal pleadings drafted by lawyers” and can be dismissed for failure to state a claim only if it

appears beyond a doubt that the plaintiff can prove no set of facts in support of his claim that

would entitle him to relief. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972).

B. Section 1983 Standard

Section 1983 is the vehicle by which private citizens may seek redress for violations of

federal constitutional rights committed by state officials. See 42 U.S.C. § 1983. The statute

states, in pertinent part:

Every person who, under color of any statute, ordinance, regulation, custom, or

usage, of any State or Territory or the District of Columbia, subjects, or causes to

be subjected, any citizen of the United States or other person within the jurisdiction

thereof to the deprivation of any rights, privileges, or immunities secured by the

Constitution and laws, shall be liable to the party injured in an action at law, suit in

equity, or other proper proceeding for redress.

Id. “Section 1983 is not a source of substantive rights,” but is merely a means through which “to

vindicate violations of federal law committed by state actors.” See Pappas v. City of Lebanon,

331 F. Supp. 2d 311, 315 (M.D. Pa. 2004) (quoting Gonzaga Univ. v. Doe, 536 U.S. 273, 284-85

(2002)). To state a cause of action under Section 1983, a plaintiff must allege that: (1) the

conduct complained of was committed by persons acting under color of state law; and (2) the

conduct violated a right, privilege, or immunity secured by the Constitution or laws of the United

States. See Harvey v. Plains Twp. Police Dep’t, 421 F.3d 185, 189 (3d Cir. 2005) (quoting West

v. Atkins, 487 U.S. 42, 48 (1988)).

III. DISCUSSION

A. Plaintiff’s Complaint

1. Defendant DOC

As noted supra, Plaintiff has named the DOC as a Defendant in the above-captioned

action. The Eleventh Amendment bars suits against a state and its agencies in federal court that

seek monetary damages. See Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 99-

100 (1984). “Because the Commonwealth of Pennsylvania’s Department of Corrections is part

of the executive department of the Commonwealth , . . . it shares in the Commonwealth’s

Eleventh Amendment immunity.” Lavia v. Pa. Dep’t of Corr., 224 F.3d 190, 195 (3d Cir. 2000).

Plaintiff’s claims for injunctive relief against the DOC are also barred by the Eleventh

Amendment. See Beckett v. Pa. Dep’t of Corr., 597 F. App’x 665, 667 (34d Cir. 205) (citing

Will v. Mich Dep’t of State Police, 491 U.S. 58, 71 (1989)). Moreover, the DOC does not

qualify as a “person” amenable to suit pursuant to § 1983. See Pettaway v. SCI Albion, 487 F.

App’x 766, 768 (3d Cir. 2012) (citing Will, 491 U.S. at 71). The Court, therefore, will grant

Defendant DOC’s motion to dismiss.

2. Claims Against Defendants Troutman, Davis, Nelligan, Harden, and

DeSando

Defendants Troutman and Davis seek dismissal of Plaintiff’s complaint because: (1)

Plaintiff has failed to allege any facts establishing their personal involvement in the alleged

constitutional violations; (2) Plaintiff’s due process claim is barred by the favorable termination

rule; (3) no private cause of action exists under Pennsylvania’s statute criminalizing false reports

to law enforcement; and (4) Plaintiff has failed to allege facts suggesting that they committed an

assault or battery upon him. (Doc. No. 15 at 3.) Defendants Nelligan, Harden, and DeSando

seek partial dismissal of Plaintiff’s complaint because: (1) Plaintiff’s due process claim is barred

by the favorable termination rule; and (2) no private cause of action exists under Pennsylvania’s

statute criminalizing false reports to law enforcement. (Doc. Nos. 26 at 3; 42 at 3; 46 at 3.) The

Court considers these arguments below.

a. Personal Involvement

For a § 1983 claim to survive a motion to dismiss, the plaintiff must sufficiently allege

that the defendant was personally involved in the act or acts that the plaintiff claims violates his

rights. See Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988); see also Solan v. Ranck,

326 F. App’x 97, 100 (3d Cir. 2009). In his complaint, Plaintiff suggests that Defendants

Troutman and Davis are liable because they are the director and president, respectively, of KCS

and were “in charge on the day of the incident.” (Doc. No. 1 at 2.) From this, it appears that

Plaintiff seeks to proceed against Defendants Troutman and Davis based upon their respective

supervisory positions.

Supervisors “may not be held liable for the unconstitutional conduct of their subordinates

under a theory of respondeat superior.” See Iqbal, 556 U.S. at 676. The Third Circuit has noted

that there are two theories of supervisory liability applicable to claims brought pursuant to

§ 1983: (1) “a supervisor may be personally liable under § 1983 if he or she participated in

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

knowledge of and acquiesced in his subordinates’ violations”; and (2) policymakers may also be

liable under § 1983 “if it is shown that such defendants, ‘with deliberate indifference to the

consequences, established and maintained a policy, practice[,] or custom which directly caused

[the] constitutional harm.’” See A.M. ex rel. J.M.K. v. Luzerne Cty. Juvenile Det. Ctr., 372 F.3d

572, 586 (3d Cir. 2004). With respect to the second theory of liability, the plaintiff must allege

that “(1) existing policy or practice creates an unreasonable risk of constitutional injury; (2) the

supervisor was aware that the unreasonable risk was created; (3) the supervisor was indifferent to

that risk; and (4) the injury resulted from the policy or practice.” See Merring v. City of

Carbondale, 558 F. Supp. 2d 540, 547 (M.D. Pa. 2008) (citing Sample v. Diecks, 885 F.2d 1099,

1118 (3d Cir. 1989)).

In the instant case, Plaintiff’s complaint fails to set forth plausible supervisory liability

claims against Defendants Troutman and Davis. The complaint is devoid of allegations that

Defendants Troutman and Davis had knowledge of and acquiesced in any alleged constitutional

violations by their subordinates. See A.M., 372 F.3d at 586. Moreover, Plaintiff fails to identify

a policy that allegedly caused the violation of his constitutional rights.3 See McTernan v. City of

3 Liability is only imposed “when the policy or custom itself violates the Constitution or when

the policy or custom, while not unconstitutional itself, is the ‘moving force’ behind the

constitutional tort of [an] employee.” See Colburn v. Upper Darby Twp., 946 F.2d 1017, 1027

(3d Cir. 1991) (quoting Polk Cty. v. Dodson, 454 U.S. 312, 326 (1981)). In the instant case,

Plaintiff suggests that the failure to follow DOC and KCS policies led to the alleged violations of

his constitutional rights, not that the policies themselves caused the alleged violations. (Doc. No.

1 at 1, 10-11.) Moreover, “[t]o the extent [Plaintiff] seeks relief for the violation of [these]

policies, these regulations are not cognizable under 42 U.S.C. § 1983.” See Johnson v. Dep’t of

Corr., No. 1:14-cv-896, 2016 WL 1135501, at *8 n.41 (M.D. Pa. Mar. 3, 2016), report and

recommendation adopted, 2016 WL 1109471 (M.D. Pa. Mar. 22, 2016); see also Bullard v.

York, 564 F.3d 636, 658 (3d Cir. 2009). Thus, Plaintiff has failed to set forth plausible

supervisory liability claims against Defendants Troutman and Davis, and his § 1983 claims

against them are subject to dismissal for that reason alone.

b. Fourteenth Amendment Due Process Claim

Throughout his complaint, Plaintiff suggests that his Fourteenth Amendment due process

rights were violated by allegedly false statements made during the course of his criminal

prosecution relating to the January 2, 2019 incident. (Doc. No. 1.) However, the Supreme Court

has noted that a § 1983 claim for does not accrue “for allegedly unconstitutional conviction or

imprisonment, or for other harm caused by actions whose unlawfulness would render a

conviction or sentence invalid,” until the plaintiff demonstrates that the “conviction or sentence

has been reversed on direct appeal, expunged by executive order, declared invalid by a state

tribunal authorized to make such determination, or called into question by a federal court’s

issuance of a writ of habeas corpus.” See Heck v. Humphrey, 512 U.S. 477, 486-87 (1994).

Thus, “where success in a § 1983 action would implicitly call into question the validity of

conviction or duration of sentence, the plaintiff must first achieve favorable termination of his

available state or federal habeas remedies to challenge the underlying conviction or sentence.”

See Williams v. Consovoy, 453 F.3d 173, 188 (3d Cir. 2006).

In the instant case, Plaintiff’s due process claim calls into question the validity of the

convictions arising from the January 2, 2019 incident. As noted supra, Plaintiff pled nolo

contendere to simple assault, tampering with/fabricating physical evidence, possession of a

controlled substance, and use/possession of drug paraphernalia. See Leaks, Docket No. CP-22-

Scism, 449 F. App’x 232, 235 (3d Cir. 2011) (noting that “even if the [BOP’s] regulation were

violated, its violation is not actionable”).

CR-0000571-2019. Plaintiff’s nolo contendere plea “under Pennsylvania law is treated the same

as a conviction for purposes of Heck.” See Massey v. Pfeifer, 804 F. App’x 113, 115 (3d Cir.

2020 (citing Curry v. Yachera, 835 F.3d 373, 378 (3d Cir. 2016)). Plaintiff’s convictions have

not been overturned or expunged. A finding that Plaintiff’s due process rights were violated

because of the presentation of allegedly false testimony would necessarily call into question his

state court convictions. Accordingly, his claim is barred by the favorable termination rule set

forth in Heck. See Simonton v. Ryland-Tanner, No. 4:19-cv-528, 2020 WL 1446727, at *1 n.7

(M.D. Pa. Mar. 25, 2020) (concluding the same regarding the plaintiff’s claim of false

testimony); Bucano v. Pennsylvania, No. 3:12-cv-1816, 2012 WL 6917785, at *5 (M.D. Pa. Dec.

27, 2012) (concluding same), report and recommendation adopted, 2013 WL 247003 (M.D. Pa.

Jan. 22, 2013). Thus, the Court will grant Defendants Troutman, Davis, Nelligan, Harden, and

DeSando’s motions to dismiss with respect to Plaintiff’s Fourteenth Amendment due process

claim.

c. False Reports Claim

Plaintiff indicates that he is asserting a claim for “fraudulent reports” under Pennsylvania

state law. (Doc. No. 1 at 1.) Defendants have construed Plaintiff’s complaint as asserting a

claim pursuant to Pennsylvania’s criminal statute regarding making false reports to law

enforcement, 18 Pa. C.S.A. § 4906. (Doc. No. 15 at 7.) Pennsylvania courts “have on occasion

recognized that tort liability may be imposed for Crimes Code violations,” and that the “same

conduct that constitutes a violation of a criminal statute may also form the basis for a separate

civil claim.” See D’Errico v. DeFazio, 763 A.2d 424, 430 (Pa. Super. Ct. 2000). Here, however,

Plaintiff “do[es] not seek redress under general negligence or other well-established common law

principles[;] instead, [he] seek[s] to impose civil liability based on the criminal statute[s]

[themselves].” See id. There is no indication that a private cause of action exists for alleged

violations of § 4906. See Williams v. Temple Univ., No. 04-cv-831, 2011 WL 2516234, at *10

(E.D. Pa. June 21, 2011). The Court, therefore, will grant the motions to dismiss with respect to

Plaintiff’s “fraudulent reports” claim based upon violations of 18 Pa. C.S.A. § 4906.

d. Assault and Battery Claims

Plaintiff also suggests that Defendants Troutman and Davis are liable for assault and

battery under Pennsylvania state law. (Doc. No. 1 at 1.) Under Pennsylvania law, an assault is

“an intentional attempt by force to do an injury to the person of another and a battery is

committed whenever the violence menaced in an assault is actually done, though in ever so small

a degree, upon the person.” See Rosembert v. Borough of E. Lansdowne, 14 F. Supp. 3d 631,

644 (E.D. Pa. 2014). The Court agrees with Defendants, however, that Plaintiff’s complaint fails

to allege facts from which it could be inferred that Defendants Troutman and Davis committed

an assault and battery upon Plaintiff. As discussed supra, Plaintiff has brought suit against

Defendants Troutman and Davis merely because they were “in charge [of KCS] on the day of the

incident.” Such is insufficient to allege that Defendants committed assault and battery in

violation of state law. The Court, therefore, will grant the motion to dismiss with respect to

Plaintiff’s assault and battery claims against Defendants Troutman and Davis.

e. Leave to Amend

Courts are cautioned that because of the applicable pleading standard, a plaintiff should

generally be granted leave to amend before dismissing a claim that is merely deficient. See

Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002). The federal rules allow for

liberal amendment in light of the “principle that the purpose of pleading is to facilitate a proper

decision on the merits.” See Foman v. Davis, 371 U.S. 178, 182 (1962) (citations and internal

quotations omitted). The Court may deny a motion to amend where there is “undue delay, bad

faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by

amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of

the amendment, [or] futility of the amendment.” See id. The Court must also determine that a

proposed amendment would be futile if the complaint, as amended, would not survive a motion

to dismiss for failure to state a claim. See In re NAHC, Inc. Sec. Litig., 306 F.3d 1314, 1332 (3d

Cir. 2002). Based on the foregoing, the Court concludes that it would be futile to grant Plaintiff

leave to file an amended complaint with respect to: (1) his claims against Defendant DOC; (2)

his claims against Defendants Troutman and Davis; (3) his Fourteenth Amendment due process

claim; and (4) his false reports claim pursuant to 18 Pa. C.S.A. § 4906. The above-captioned

action will, therefore, proceed as to Plaintiff’s Fourth and Eighth Amendment claims, as well as

his assault and battery claims, against Defendants Nelligan, DeSando, and Harden.

IV. CONCLUSION

For the foregoing reasons, the Court will grant the motions to dismiss (Doc. Nos. 14, 25,

30, 41, 45) filed by Defendants Troutman, Davis, Nelligan, DeSando and the DOC. The above-

captioned action will, therefore, proceed as to Plaintiff’s Fourth and Eighth Amendment claims,

as well as his assault and battery claims, against Defendants Nelligan, DeSando, and Harden. An

appropriate Order follows.