Bax v. Clark

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

TEVIN BAX, :

Plaintiff :

: No. 1:20-cv-222

v. :

: (Judge Rambo)

MATTHEW DWAYNE :

CLARK, et al., :

Defendants :

MEMORANDUM

This matter is before the Court pursuant to the partial motion to dismiss (Doc.

No. 84) filed by Defendants Craig Rutherford (“Rutherford”) and the Pennsylvania

Department of Corrections (“DOC”). The motion is fully briefed and ripe for

disposition.1

I. BACKGROUND

A. Procedural History

On February 7, 2020, Plaintiff Tevin Bax (“Plaintiff”), then proceeding pro

se, initiated the above-captioned action by filing a complaint pursuant to 42 U.S.C.

§ 1983 against Defendants C.O. Clark (“Clark”) and Superintendent Mark Garman

1 While Defendants have not filed a reply brief, the Court notes that it is “under no obligation to

refrain from considering [the] motion until [Defendants] file a reply brief.” King v. Mansfield

Univ. of Pa., No. 1:11-cv-1112, 2025 WL 871693, at *3 (M.D. Pa. Feb. 27, 2015). The Local

Rules of this Court make clear that the Court has unlimited authority to decide a motion before the

expiration of the typical briefing schedule. See M.D. Pa. L.R. 7.6. The Court finds that the issues

have been adequately briefed such that any reply by Defendants “would [not] have any material

impact” on the Court’s decision. See Witasick v. Minn. Mut. Life Ins. Co., No. 12-3474, 2015 WL

758316, at *1 n.3 (D.N.J. Feb. 23, 2015).

(“Garman”). (Doc. No. 1.) On February 24, 2020, Plaintiff filed an amended

complaint. (Doc. No. 8.) In an Order dated March 3, 2020, the Court granted

Plaintiff leave to proceed in forma pauperis, dismissed Defendant Garman, and

directed the Clerk of Court to effect service of the amended complaint upon

Defendant Clark. (Doc. No. 16.) More than thirty (30) days passed, and Defendant

Clark did not return a waiver of service. Accordingly, in an Order dated April 6,

2020, the Court directed the Clerk of Court to issue a summons so that the United

States Marshal could effect service of the amended complaint on Defendant Clark.

(Doc. No. 21.) On June 8, 2020, the summons was returned as executed. (Doc. No.

22.) The summons indicated that it was served upon Ken Brubaker in SCI

Rockview’s Superintendent’s Office. (Id.)

In an Order dated June 19, 2020, the Court indicated that it had “recently

learned that Defendant Clark was criminally charged because of the incident alleged

in Plaintiff’s amended complaint.”2 (Doc. No. 24.) The Court, therefore, noted that

it could not “conclusively discern that Defendant Clark has received notice of the

above-captioned case.” (Id.) The Court ordered Plaintiff to provide Defendant

Clark’s first name, for purposes of service, within fourteen (14) days. (Id.) On June

2 Public records reflect that on May 19, 2021, Defendant Clark pled nolo contendere to simple

assault and was sentenced to two (2) years of probation. See Commonwealth v. Clark, Docket No.

CP-14-CR-0000489-2020 (Centre Cty. C.C.P.).

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29, 2020, Plaintiff responded to the Court’s Order and indicated that Defendant

Clark’s full name is Matthew Dwayne Clark. (Doc. No. 25.)

In an Order dated June 30, 2020, the Court requested that the DOC’s Office

of Chief Counsel provide, under seal, any information they may have concerning

Defendant Clark’s last known address. (Doc. No. 26.) On July 10, 2020, the Office

of Chief Counsel provided such information under seal. (Doc. No. 27.) In an Order

dated July 13, 2020, the Court directed the Clerk of Court to issue a summons so

that the United States Marshal could attempt to serve Defendant Clark at the address

provided by the Office of Chief Counsel. (Doc. No. 28.) The summons was returned

as executed on September 28, 2020. (Doc. No. 37.) The executed summons

indicated that it was served upon Defendant Clark’s mother on September 24, 2020.

(Id.) Defendant Clark’s mother indicated that Defendant Clark did not live there but

that she would give the summons to him. (Id.) Given this, despite the execution of

the summons, the Court could not conclusively discern that Defendant Clark had

received notice of the above-captioned case.

In an Order dated October 26, 2020, the Court referred the above-captioned

action to the Chair of the Federal Bar Association’s Pro Bono Committee for

purposes of locating counsel to represent Plaintiff in this matter. (Doc. No. 39.)

Counsel subsequently appeared on behalf of Plaintiff. (Doc. Nos. 48, 50.)

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Following a telephone conference, the Court stayed all applicable case management

deadlines and extended the time period for effecting service upon Defendant Clark

by sixty (60) days. (Doc. No. 54.) Defendant Clark subsequently filed a waiver of

service, and his answer or response to the amended complaint was due on or before

May 17, 2021. (Doc. No. 55.) On May 21, 2021, Plaintiff requested that the Clerk

enter default against Defendant Clark because of his failure to respond to the

amended complaint. (Doc. No. 57.) Clerk’s default was entered on May 24, 2021.

(Doc. No. 58.) On September 20, 2021, Plaintiff, through counsel, filed a motion

for leave to file a second amended complaint. (Doc. No. 75.) The Court granted

the motion that same day. (Doc. No. 76.) Accordingly, the above-captioned action

is proceeding on the second amended complaint against Defendants Clark,

Rutherford, and the DOC. (Doc. No. 77.)

B. Summary of the Second Amended Complaint

The DOC has records of Plaintiff being “seriously mentally ill.” (Doc. No.

77 ¶ 9.) On October 30, 2019, Plaintiff felt suicidal, which “resulted in the initiation

of a transfer from the Diversionary Treatment Unit [(“DTU”)] to a psychiatric

observation cell.” (Id. ¶ 10.) Defendant Rutherford was the supervisor in charge of

the transfer, and he assigned Defendant Clark as the escorting officer. (Id. ¶ 12.)

During the transfer, Plaintiff “was handcuffed and restricted by [D]efendant Clark

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on his left side. Defendant Rutherford followed closely behind to the right of

[Plaintiff].” (Id. ¶ 13) Although Plaintiff and Defendant Clark had a “verbal

altercation at the very beginning of the transfer,” Defendant Rutherford “chose not

to remove [D]efendant Clark from the scene.” (Id. ¶ 14.) Instead, Defendant

Rutherford told Plaintiff, “My advice to you is to keep your mouth shut.” (Id. ¶ 16.)

As Plaintiff approached the inner grill door, Defendant Clark slammed him

face first into the door. (Id. ¶ 17.) “Defendant Rutherford watched this assault and

made no comment.” (Id. ¶ 18.) As Plaintiff approached the second door, Defendant

Clark again slammed him face first into the door. (Id. ¶ 20.) Defendant Rutherford

watched and did not intervene. (Id. ¶ 21.) Plaintiff stated: “Your boy . . . slammed

my face into there [the doors] twice!” (Id. ¶ 22.) Defendant Rutherford responded,

“My boy didn’t . . . . Nobody did anything to you.” (Id.)

Defendant Rutherford directed staff to strap Plaintiff into a restraint chair. (Id.

¶ 25.) As Plaintiff was being strapped into the chair, Defendant Clark “placed his

hand on [Plaintiff’s] throat and told him “Do it” in an attempt to goad [him] into

spitting on the officers restraining him.” (Id. ¶ 26.) Staff, including Defendant

Rutherford and Officers Matthew Bower, Jared Curtis, and William Miller, then held

Plaintiff’s “head down with his stomach flush against his legs for approximately four

minutes and fifty-six seconds, a method of physical restraint known to be capable of

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causing positional asphyxia—death as a result of a body position which interferes

with a person’s ability to breathe.” (Id. ¶ 29.) During this time, Defendant Clark

“repeatedly goaded [Plaintiff] to “Do it . . . . Do it you f***ing p****.” (Id. ¶ 30.)

Defendant Rutherford took no action to reprimand Defendant Clark or otherwise

intervene. (Id. ¶ 32.)

While Plaintiff was strapped in the restraint chair with his head down,

Defendant Clark kicked him in the face. (Id. ¶ 34.) Only then did Defendant

Rutherford remove Defendant Clark from the scene. (Id. ¶ 35.) Despite admitting

to a DOC Criminal Investigator that he witnessed Defendant Clark kick Plaintiff in

the face, Defendant Rutherford, “on video, denied to [Plaintiff] that the assault

occurred.” (Id. ¶ 36.) Plaintiff exclaimed, “You just let your officer kick me in the

face?!” (Id. ¶ 37.) Defendant Rutherford denied the assault and said that he saw

Plaintiff spit on Officer Bower’s pants leg. (Id. ¶¶ 38-39.) Plaintiff asked, “How do

you explain that my forehead is randomly bleeding?” (Id. ¶ 40.) Defendant

Rutherford “suggested that perhaps [Plaintiff] had suffered an ‘injury beforehand’

or had a ‘pimple.’” (Id.) Officer Bower also denied seeing the assault, and

Defendant Clark and Officer Bower “then attempted to cover up the assault of

[Plaintiff] by falsely charging him with assault.” (Id. ¶¶ 41-42.)

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Based on the foregoing, Plaintiff alleges that his Eighth and Fourteenth

Amendment rights were violated. (Id. ¶¶ 44-86.) He also asserts violations of the

Americans with Disabilities Act (“ADA”) and the Rehabilitation Act (“RA”). (Id.

¶¶ 87-114.) As relief, Plaintiff requests damages, including punitive damages,

attorneys’ fees, and costs. (Id. at 20.)

II. STANDARD OF REVIEW

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

When ruling on a motion to dismiss under Rule 12(b)(6), the Court must

accept 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

In re Ins. Brokerage Antitrust Litig., 618 F.3d 300, 314 (3d Cir. 2010). The Court’s

inquiry is guided by the standards of Bell Atlantic Corp. v. Twombly, 550 U.S. 544

(2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009). Under Twombly and Iqbal,

pleading requirements have shifted to a “more heightened form of pleading.” See

Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009). To prevent dismissal,

all civil complaints must set out “sufficient factual matter” to show that the claim is

facially plausible. Id. The plausibility standard requires more than a mere possibility

that the defendant is liable for the alleged misconduct. As the Supreme Court

instructed in Iqbal, “where the well-pleaded facts do not permit the court to infer

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more than the mere possibility of misconduct, the complaint has alleged – but it has

not ‘show[n]’ – ‘that the pleader is entitled to relief.’” Iqbal, 556 U.S. at 679 (citing

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

Accordingly, to determine the sufficiency of a complaint under Twombly and

Iqbal, the United States Court of Appeals for the Third Circuit has identified the

following steps a district court must take when determining the sufficiency of a

complaint under Rule 12(b)(6): (1) identify the elements a plaintiff must plead to

state a claim; (2) identify any conclusory allegations contained in the complaint “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)

(citation and quotation marks omitted).

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.” 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)). A court may also consider “any ‘matters

incorporated by reference or integral to the claim, items subject to judicial notice,

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matters of public record, orders, [and] items appearing in the record of the case.’”

Buck v. Hampton Twp. Sch. Dist., 452 F.3d 256, 260 (3d Cir. 2006) (quoting 5B

Charles A. Wright & Arthur R. Miller, Federal Practice & Procedure § 1357 (3d Ed.

2004)); see also Pryor v. Nat’l Collegiate Athletic Ass’n, 288 F.3d 548, 560 (3d Cir.

2002) (noting that when considering a motion to dismiss, courts may consider

“documents whose contents are alleged in the complaint and whose authenticity no

party questions, but which are not physically attached to the pleading”).

B. Civil Rights Statute, 42 U.S.C. § 1983

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 merely a method to

vindicate violations of federal law committed by state actors.” See 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

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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

As noted supra, Plaintiff asserts ADA and RA claims against the DOC.

Plaintiff avers that he was entitled to reasonable accommodations because of his

status as a suicidal inmate and that Defendants Clark and Rutherford failed to

reasonably accommodate his disability during the transfer to the psychiatric

observation cell. (Doc. No. 1.) The DOC seeks dismissal of Plaintiff’s ADA and

RA claims for failure to state a claim upon which relief may be granted. (Doc. No.

85.)

To establish a violation of Title II of the ADA, a plaintiff must allege that “(1)

he is a qualified individual with a disability; (2) he was either excluded from

participation in or denied the benefits of some public entity’s services, programs, or

activities; and (3) such exclusion, denial of benefits, or discrimination was by reason

of his disability.” See Mutschler v. SCI Albion CHCA Health Care, 445 F. App’x

617, 621 (3d Cir. 2011) (citing 42 U.S.C. § 12132.) Title II applies to inmates in

state prisons. See Pa. Dep’t of Corr. v. Yeskey, 524 U.S. 206, 208 (1998) (quoting

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42 U.S.C. §§ 12141 and 12132). The RA provides that “[n]o otherwise qualified

individual with a disability in the United States . . . shall, solely by reason of his or

her disability, be excluded from the participation in, be denied the benefits of, or be

subjected to discrimination under any program or activity receiving Federal financial

assistance.” See 29 U.S.C. § 794(a). “The ADA and the [RA] have the same

standard for liability and are to be interpreted consistently.” Matthews v. Pa. Dep’t

of Corr., 613 F. App’x 163, 166-67 (3d Cir. 2015). Moreover, a plaintiff may assert

a claim for violations of the ADA and RA based on a failure to accommodate. See

Muhammad v. Ct. of Common Pleas, 483 F. App’x 759, 763 (3d Cir. 2012). To set

forth such a claim, a plaintiff must allege that “but for the failure to accommodate,

he would not be deprived of the benefit he seeks.” See id. at 764.

The DOC concedes that Plaintiff satisfies the first element of an ADA and RA

claim because records designate him as “seriously mentally ill.” (Doc. No. 85 at 5.)

The DOC, however, disputes that Plaintiff “was denied the benefits of any services

or programs or was otherwise discriminated against by the DOC because of his

disability.” (Id.) The DOC avers that Plaintiff’s status as a DTU inmate “severely

undermines any claim that he was treated in the same manner as other inmates

without a disability, or that the DOC otherwise failed to account for his disability

when housing or transferring him.” (Id. at 7.)

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As noted supra, Plaintiff seeks compensatory and punitive damages. (Doc.

No. 77 at 20.) Punitive damages, however, are not available under Title II of the

ADA and section 504 of the RA. See Bowers v. Nat’l Collegiate Athletic Ass’n, 346

F.3d 402, 429 (3d Cir. 2003) (citing Barnes v. Gorman, 536 U.S. 181, 187 (2002)).

To receive compensatory damages, Plaintiff must demonstrate “intentional

discrimination under a deliberate indifference standard.” See Furgess v. Pa. Dep’t

of Corr., 933 F.3d 285, 288-89 (3d Cir. 2019). Thus, Plaintiff must allege that the

DOC “(1) had ‘knowledge that a federally protected right is substantially likely to

be violated,’ and (2) failed ‘to act despite that knowledge.’” Snider v. Pa. DOC, 505

F. Supp. 3d 360, 397 (M.D. Pa. 2020) (quoting Geness v. Admin. Office of Pa.

Courts, 974 F.3d 263, 274 (3d Cir. 2020)). Plaintiff can show that such a right “was

‘substantially likely to be violated’ by either (1) alleging ‘a failure to adequately

respond to a pattern of past occurrences of injuries like [his]”; or (2) alleging facts

that ‘prove that the risk of . . . cognizable harm was so great and so obvious that the

risk and the failure . . . to respond will alone support finding deliberate

indifference.’” Matthews v. Pa. Dep’t of Corr., 827 F. App’x 184, 187 (3d Cir.

2020) (quoting Haberle v. Troxell, 885 F.3d 170, 181 (3d Cir. 2018)).

The DOC asserts that “it may not reasonably be said that decisions regarding

[Plaintiff’s] housing status, and the measures employed during his escort to a POC,

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equate to discrimination by the DOC on the basis of his mental illness or suicidal

state.” (Doc. No. 85 at 8.) The DOC avers that Plaintiff “was subject to the same

security measures outlined in policy—including the manner in which

transports/escorts are conducted—as the other mentally ill inmates on that block that

have been deemed to pose a security risk.” (Id.) The DOC argues that it is apparent

that it was cognizant of Plaintiff’s “mental health needs and took steps to ensure he

was housed appropriately, as evidenced by the fact that he was housed on the DTU

and subsequently promptly escorted him to the POC when the need arose.” (Id. at

13.)

The Court agrees with Plaintiff that the DOC has misread his claim, as

nowhere in the second amended complaint does Plaintiff challenge his housing

status in the DTU or the decision to transfer him to a psychiatric observation cell.

(Doc. No. 86 at 4.) Rather, Plaintiff avers that the DOC failed to accommodate his

disability during the transfer from the DTU to the psychiatric observation cell. In

his brief in opposition, Plaintiff relies upon the Middle District of Florida’s decision

in Walton for Estate of Smith v. Fla. Dep’t of Corr., No. 3:16-cv-1130-J-39JRK,

2019 WL 2103024 (M.D. Fla. May 14, 2019). In that matter, the estate of a deceased

inmate brought suit against, inter alia, the Florida DOC for violations of Title II of

the ADA. Id. at *10. The estate alleged that the FDOC had failed to accommodate

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the deceased inmate’s mental health disability by punishing him when he could not

understand or follow commands, refusing to train employees regarding the safe

management of mentally ill inmates, refusing to consider his disability when moving

and escorting him, allowing “sadistic officers to bait and abuse” him, and failing to

use alternatives to force to manage him. Id. at *11. The Middle District of Florida

concluded that the estate had stated a claim under the ADA because these allegations

“permit[ted] the reasonable inference that the alleged discriminatory conduct against

[the deceased inmate] was because of his disability.” Id. at *12.

In the instant case, Plaintiff makes allegations similar to those at issue in

Walton. As noted supra, Plaintiff avers that during the transfer, Defendant Clark

slammed his head into two separate doors, placed his hand on Plaintiff’s throat and

attempted to goad him into spitting on the officers, and kicked him the face while he

was in the restraint chair. (Doc. No. 77.) Plaintiff alleges further that Defendant

Rutherford and other officers held him head down with his stomach flush against his

legs for five (5) minutes in a manner of restraint known to “be capable of causing

positional asphyxia—death as a result of a body position which interferes with a

person’s ability to breathe.” (Id. ¶ 29.) Plaintiff further avers that at no time did

Defendant Rutherford act to remove Defendant Clark from the scene or intervene to

prevent the assaults, and that he denied that the assaults occurred. Like the plaintiff

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in Walton, Plaintiff here “alleges the [DOC] failed to accommodate [his] mental

disability such that he was at a heightened risk of harm, resulting in injury.” Walton,

2019 WL 2103024, at *11.

The DOC argues further that, even assuming that Plaintiff “was entitled to

reasonable accommodations, the proposed accommodations are nebulous,

unreasonable, and impractical in a prison setting.” (Doc. No. 85 at 10.) They assert

that “it is unreasonable to suggest that corrections officers should be required to

respect an inmate’s ‘comfort zone’ during an escort through the institution,” and that

Plaintiff’s other requests “do not constitute reasonable additional accommodations

that would form the basis for an ADA claim.” (Id. at 10, 12.) This, however, is not

fatal to Plaintiff’s ADA and RA claims because his second amended complaint

“need only set forth sufficient facts to support plausible claims.” Fowler, 578 F.3d

at 211-12. As long as a complaint “pleads how, when, and where [the DOC]

allegedly discriminated against [Plaintiff],” this is “sufficient to give [the DOC]

notice of the basis for [Plaintiff’s] claim.” Id. at 212. Moreover, Plaintiff must

allege only material facts that, “in addition to inferences drawn from those factual

allegations, provide a basis for recovery.” Menkowitz v. Pottstown Mem’l Med. Ctr.,

154 F.3d 113, 124 (3d Cir. 1998). Plaintiff has done so in his second amended

complaint, and his allegations “permit the reasonable inference that the alleged

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discriminatory conduct against [him] was because of his disability.” Walton, 2019

WL 2103024, at *12. At this time, the Court will not foreclose Plaintiff’s ADA and

RA claims “without the benefit of a factually developed record.” Id.

IV. CONCLUSION

For the foregoing reasons, the partial motion to dismiss (Doc. No. 84) will be

denied. An appropriate Order follows.

s/ Sylvia H. Rambo

United States District Judge

Date: December 7, 2021

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