Oren v. Pennsylvania Department of Corrections

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF PENNSYLVANIA

ARIE OREN,

Plaintiff, CIVIL ACTION NO. 3:20-cv-02451

v. (SAPORITO, M.J.)

PENNSYLVANIA DEPARTMENT

OF CORRECTIONS, et al.,

Defendants.

MEMORANDUM

This is a fee-paid federal civil rights action by a former state

prisoner, Arie Oren, challenging the conditions of his confinement while

he was incarcerated at a Pennsylvania state prison, SCI Camp Hill,

between April 2013 and June 2019. At the time of filing, Oren had been

released from prison and deported to his native country, Israel. He is

represented by counsel.

In his counseled complaint, the plaintiff asserts Eighth Amendment

cruel and unusual punishment and Fourteenth Amendment due process

claims, made actionable under 42 U.S.C. § 1983, and a failure to

accommodate claim under Title II of the Americans with Disabilities Act

(“ADA”), 42 U.S.C. § 12131 et seq., against five named defendants: (1) the

Pennsylvania Department of Corrections (“DOC”); (2) John E. Wetzel, the

Pennsylvania Secretary of Corrections; (3) Laurel R. Harry, the

Superintendent of SCI Camp Hill; (4) Sergeant Rivera, a correctional

officer at SCI Camp Hill; and (5) CO Lagovino, a correctional officer at

SCI Camp Hill. For relief, the plaintiff seeks an unspecified amount of

compensatory and punitive damages.

The defendants have entered their appearance through counsel and

moved to dismiss the action for failure to state a claim, pursuant to Rule

12(b)(6) of the Federal Rules of Civil Procedure. (Doc. 10). That motion is

fully briefed and ripe for decision. (Doc. 11; Doc. 12; Doc. 13.)

I. ALLEGATIONS OF THE COMPLAINT

Oren was incarcerated at SCI Camp Hill from April 2013 through

July 2019,1 when he was transferred to federal immigration custody. He

was ultimately deported to Israel in April 2020.

During his period of incarceration, Oren was “qualified” as hearing

1 The complaint alleges in one spot that Oren was paroled and

released to federal immigration officials in June 2019, but elsewhere it

alleges that he was paroled and released to federal immigration officials

in July 2019. Based on the facts alleged throughout the complaint,

including other events that occurred in July 2019 while incarcerated at

SCI Camp Hill, we have treated the reference to a June release date as a

scrivener’s error.

impaired.2 On October 15, 2015, Oren was charged with a misconduct by

Sergeant Rivera for continuing to use a telephone after the time period

for which he had signed up expired. According to Rivera, Oren had

ignored an intercom announcement instructing him to get off the

telephone because his time had expired. But Oren did not hear the

announcement due to his hearing impairment. Rivera also falsely stated

that there were other inmates waiting to use the phone at the time.

Oren was placed in administrative custody and denied telephone

privileges for 30 days while the misconduct was pending. Ultimately, the

Program Review Committee dismissed the misconduct on administrative

appeal.

For reasons that do not appear to be relevant to the disposition of

his claims, Oren was twice considered for and denied parole release in

December 2016 and November 2017. Oren was ultimately approved for

parole in May 2019.

In March 2019, Oren’s cell was searched and officials confiscated a

2 It is unclear whether this allegation means the plaintiff’s hearing

impairment was first diagnosed during his incarceration, or if it means

he was hearing impaired during the entire period of his incarceration at

SCI Camp Hill. The distinction is immaterial in any event.

cellphone that belonged to his cellmate, which was apparently

contraband. On March 22, 2019, Oren was placed in administrative

custody “pending investigation.” On April 24, 2019, Oren received a

notice informing him that his administrative custody status had been

changed from “under investigation” to “safety segregation” because Oren

was a “danger to himself or from some person(s) in the facility and cannot

be protected by alternate measures.” Oren remained in administrative

custody until July 30, 2019, when he was paroled and released into the

custody of federal immigration officials for deportation.

On July 25, 2019, shortly before his parole release, Oren was taken

to “R block” for registration procedures, where CO Lagovino handcuffed

his wrists “extremely tightly.” Oren complained to Lagovino, informing

Lagovino that his hand was numb, tingling, and turning purple. Lagovino

verbally harassed Oren, calling him a “rapist” and a “fucking piece of

shit” from a “shitty country,” Israel. Oren requested medical treatment,

but his request was denied. Oren continued to experience numbness and

tingling in his hand for several days.

II. LEGAL STANDARD

Rule 12(b)(6) of the Federal Rules of Civil Procedure authorizes a

defendant to move to dismiss for “failure to state a claim upon which

relief can be granted.” Fed. R. Civ. P. 12(b)(6). “Under Rule 12(b)(6), a

motion to dismiss may be granted only if, accepting all well-pleaded

allegations in the complaint as true and viewing them in the light most

favorable to the plaintiff, a court finds the plaintiff’s claims lack facial

plausibility.” Warren Gen. Hosp. v. Amgen Inc., 643 F.3d 77, 84 (3d Cir.

2011) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555–56

(2007)). In deciding the motion, the Court may consider the facts alleged

on the face of the complaint, as well as “documents incorporated into the

complaint by reference, and matters of which a court may take judicial

notice.” Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322

(2007). Although the Court must accept the fact allegations in the

complaint as true, it is not compelled to accept “unsupported conclusions

and unwarranted inferences, or a legal conclusion couched as a factual

allegation.” Morrow v. Balaski, 719 F.3d 160, 165 (3d Cir. 2013) (quoting

Baraka v. McGreevey, 481 F.3d 187, 195 (3d Cir. 2007)). Nor is it required

to credit factual allegations contradicted by indisputably authentic

documents on which the complaint relies or matters of public record of

which we may take judicial notice. In re Washington Mut. Inc., 741 Fed.

App’x 88, 91 n.3 (3d Cir. 2018); Sourovelis v. City of Philadelphia, 246 F.

Supp. 3d 1058, 1075 (E.D. Pa. 2017); Banks v. Cty. of Allegheny, 568 F.

Supp. 2d 579, 588–89 (W.D. Pa. 2008).

III. DISCUSSION

A. The Plaintiff’s ADA Claim Against the DOC

The plaintiff asserts an ADA failure to accommodate claim against

the DOC.3 The defendants move to dismiss this claim on the ground that

it is barred by the applicable statute of limitations.

Title II of the ADA makes it unlawful for public entities, including

prisons, to discriminate against the disabled in the provision of services,

programs, and activities. See Disability Rights N.J., Inc. v. Comm’r, N.J.

Dep’t of Human Servs., 796 F.3d 293, 301 (3d Cir. 2015). But such claims

are subject to a two-year statute of limitations in Pennsylvania. See

Disabled in Action of Pa. v. Se. Pa. Transp. Auth., 539 F.3d 199, 208 (3d

3 All three counts of the complaint are asserted against

“Defendants” generally. But the DOC is the only appropriate defendant

for an ADA claim, as Title II of the ADA does not provide a cause of action

against individual employees of the DOC. See Whitehurst v. Lackawanna

Cty., Civil Action No. 3:17-cv-00903, 2020 WL 6106616, at *11 (M.D. Pa.

Mar. 5, 2020). To the extent the plaintiff intended to assert his ADA claim

against the other four named defendants, he has failed to state a claim

upon which relief can be granted.

Cir. 2008); see also 42 Pa. Cons. Stat. Ann. § 5524. The only

discriminatory conduct alleged in the complaint occurred in October

2015, well more than two years before this action commenced.

Although the running of a statute of limitations is an affirmative

defense, which generally must be raised by way of answer to the

complaint, see Fed. R. Civ. P. 8(c), where that defense is obvious from the

face of the complaint and no development of the record is necessary, a

court may dismiss a time-barred complaint for failure to state a claim

under Rule 12(b)(6). See Robinson v. Johnson, 313 F.3d 128, 135 & n.3

(3d Cir. 2002); I, 647 F. Supp. 2d 534, 540 (M.D. Pa. 2009); see also Collins

v. Village of Palatine, 875 F.3d 839, 842 (7th Cir. 2017) (“Although the

statute of limitations is an affirmative defense, dismissal under Rule

12(b)(6) of the Federal Rules of Civil Procedure is appropriate if the

complaint contains everything necessary to establish that the claim is

untimely. Moreover, judicial notice of public court documents is

appropriate when ruling on a Rule 12(b)(6) motion to dismiss.”) (citations

omitted).

Accordingly, the plaintiff’s ADA claim will be dismissed for failure

to state a claim upon which relief can be granted, pursuant to Rule

12(b)(6) of the Federal Rules of Civil Procedure.4

B. The Plaintiff’s Monell Claim Against the DOC

The plaintiff asserts a § 1983 Monell claim against the DOC.5 The

defendants move to dismiss this claim on the ground that Monell applies

only to municipalities, as state agencies are entitled to Eleventh

Amendment immunity.

4 We note that the body of the count articulating the plaintiff’s

§ 1983 Monell claim against the DOC includes a non sequitur reference

to Section 504 of the Rehabilitation Act, which provides a substantively

parallel cause of action to the ADA. See generally McDonald v. Pa. Dep’t

of Pub. Welfare, 62 F.3d 92, 94–95 (3d Cir. 1995) (“Whether suit is filed

under the Rehabilitation Act or under the Disabilities Act, the

substantive standards for determining liability are the same.”). We are

under no obligation to liberally construe the pleadings of a represented

party, and thus we decline to construe the complaint as also asserting a

Rehabilitation Act claim. See Zurawski v. Se. Pa. Transp. Auth., 441 Fed.

App’x 133, 135 (3d Cir. 2011) (per curiam). In any event, however, we

note that a Rehabilitation Act claim would be similarly barred by the

applicable statute of limitations. See Disabled in Action, 539 F.3d at 208.

5 As we have noted, all three counts of the complaint are asserted

against “Defendants” generally. But, much like the plaintiff’s ADA claim,

a Monell claim can only be stated against a municipality or a corporate

entity, not an individual person. See Lepre v. Lukus, 602 Fed. App’x 864,

869 n.4 (3d Cir. 2015) (per curiam) (“Monell . . . sets forth the test to

determine if municipalities, not individuals, can be held liable under

§ 1983.”); Moore v. Solanco Sch. Dist., 471 F. Supp. 3d 640, 669–70 (E.D.

Pa. 2020) (“Monell liability applies only to municipalities, not to

individuals.”). To the extent the plaintiff intended to assert his Monell

claim against the four individual defendants, he has failed to state a

claim upon which relief can be granted.

Indeed, as the plaintiff has conceded in his brief in opposition, it is

well established that Monell liability is limited to municipalities, and

state agencies such as the DOC are immune from § 1983 liability under

the Eleventh Amendment. See Monell v. Dep’t of Soc. Servs., 436 U.S.

658, 690 n.54 (1978) (“Our holding today is, of course, limited to local

government units which are not considered part of the State for Eleventh

Amendment purposes.”) (emphasis added); Downey v. Pa. Dep’t of Corr.,

968 F.3d 299, 310 & n.10 (3d Cir. 2020) (recognizing that the DOC was

immune from § 1983 Monell liability under the Eleventh Amendment);

Endl v. New Jersey, 5 F. Supp. 3d 689, 698 n.6 (D.N.J. 1989) (“[T]he

premise for Monell liability is lacking: [a state department of corrections]

is not a ‘person’ whose acts will subject it to a Section 1983 claim.”).

Accordingly, the plaintiff’s § 1983 Monell claim will be dismissed

for failure to state a claim upon which relief can be granted, pursuant to

Rule 12(b)(6) of the Federal Rules of Civil Procedure.

C. The Plaintiff’s Administrative Custody Claims

The plaintiff asserts § 1983 condition of confinement claims against

the four individual defendants arising out of an allegedly excessive and

prolonged period of administrative custody between March 2019 and July

2019.6 He contends that this extended period of administrative custody

constituted cruel and unusual punishment, in violation of the Eighth

Amendment, and deprived him of his procedural due process rights, in

violation of the Fourteenth Amendment.

6 We note that the complaint alleges a prior 30-day period of

administrative custody in October 2015, but in addition to being even

shorter than the 2019 period of administrative custody, this earlier

period of administrative custody occurred well more than two years

before this action commenced, and thus any relief under § 1983 is clearly

time-barred. See Bougher v. Univ. of Pittsburgh, 882 F.2d 74, 78–79 (3d

Cir. 1989); see also 42 Pa. Cons. Stat. Ann. § 5524.

The complaint also alleges facts concerning a July 2019 encounter

with CO Lagovino involving verbal harassment and the restraint of Oren

in handcuffs. But the complaint only expressly pleads a § 1983 claim

concerning the allegedly prolonged duration of Oren’s placement in in

administrative custody. It does not plead an excessive force claim or any

other sort of constitutional tort claim. As we have previously noted, we

are under no obligation to liberally construe the pleadings of a

represented party, and thus we decline to construe the complaint as

asserting any other § 1983 claim beside the administrative custody claim

that this counseled plaintiff has expressly pleaded. See Zurawski, 441

Fed. App’x at 135. In any event, however, we note that “[i]t is well settled

that verbal harassment of a prisoner, although deplorable, does not

violate the Eighth Amendment,” Robinson v. Taylor, 204 Fed. App’x 155,

156 (3d Cir. 2006) (per curiam), and the mere restraint of an inmate in

handcuffs resulting in nothing more than temporary numbness, with no

permanent injury or debilitating pain, amounts to a non-actionable de

minimis use of force, see Bell v. Rothrock, Civil Action No. 4:18-cv-02177,

2020 WL 1288484, at *8 (M.D. Pa. Jan. 30, 2020), report &

recommendation adopted by 2020 WL 1244595 (M.D. Pa. Mar. 16, 2020);

Best v. S.C.I. Huntingdon, Civil Action No. 3:19-cv-01599, 2019 WL

5866707, at *4 (M.D. Pa. Oct. 9, 2019), report & recommendation adopted

by 2019 WL 5868259 (M.D. Pa. Nov. 8, 2019).

The plaintiff claims that his confinement in administrative custody

for approximately 120 days violated the Eighth Amendment’s

proscription against cruel and unusual punishment. But it is well

established that confinement in administrative custody for such a brief

period of time, without any allegation that the inmate was denied “basic

human needs, such as food, clothing, shelter, sanitation, medical care [or]

personal safety,” fails to state an Eighth Amendment claim. See Griffin

v. Vaughn, 112 F.3d 703, 709 (3d Cir. 1997); see also McGrath v. Johnson,

67 F. Supp. 2d 499, 513 (E.D. Pa. 1999).

The plaintiff further claims that his confinement in administrative

custody for approximately 120 days deprived him of his Fourteenth

Amendment procedural due process rights. The Fourteenth Amendment

provides that no state shall “deprive any person of life, liberty, or

property, without due process of law.” U.S. Const. amend. XIV, § 1. As a

threshold matter, “[i]t is axiomatic that a cognizable liberty or property

interest must exist in the first instance for a procedural due process claim

to lie.” Mudric v. Att’y Gen., 469 F.3d 94, 98 (3d Cir. 2006) (citing Bd. of

Regents of State Colls. v. Roth, 408 U.S. 564, 569 (1972)); see also Wolfe

v. Pa. Dep’t of Corr., 334 F. Supp. 2d 762, 773 (E.D. Pa. 2004). But “the

mere fact of placement in administrative segregation is not in itself

enough to implicate a liberty interest.” Leamer v. Fauver, 288 F.3d 532,

546 (3d Cir. 2002). Nor does the 120-day duration of Oren’s stay in

administrative custody constitute an “atypical and significant

hardship . . . in relation to the ordinary incidents of prison life” sufficient

to deprive him of a protected liberty interest. See Griffin, 112 F.3d at

706–08 (no protected liberty interest in avoiding 15-month placement in

administrative custody); see also Washington-El v. DiGuglielmo, 419 Fed.

App’x 275, 278 n.2 (3d Cir. 2011) (per curiam) (17-month stay in

administrative custody); Torres v. Fauver, 292 F.3d 141, 151–52 (3d Cir.

2002) (120-day stay in administrative segregation). See generally Sandin

v. Conner, 515 U.S. 472, 483–84 (1995) (“States may under certain

circumstances create liberty interests which are protected by the Due

Process Clause. But these interests will be generally limited to freedom

from restraint which, while not exceeding the sentence in such an

unexpected manner as to give rise to protection by the Due Process

Clause of its own force, nonetheless imposes atypical and significant

hardship on the inmate in relation to the ordinary incidents of prison

life.”) (citations omitted). Oren does not allege any particular conditions

of his confinement in administrative custody that might constitute an

atypical, significant deprivation. Absent a protected liberty interest,

Oren’s confinement in administrative custody lacks any legal significance

for due process purposes.

Moreover, the complaint has failed to allege personal involvement

by any of the four individual defendants with respect to Oren’s placement

in administrative custody. It is well established that “[c]ivil rights claims

cannot be premised on a theory of respondeat superior. Rather, each

named defendant must be shown, via the complaint’s allegations, to have

been personally involved in the events or occurrences which underlie a

claim.” Millbrook v. United States, 8 F. Supp. 3d 601, 613 (M.D. Pa. 2014)

(citation omitted) (emphasis added). As previously explained by the Third

Circuit:

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.

Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988). Although a

supervisor cannot encourage constitutional violations, a supervisor has

“no affirmative constitutional duty to train, supervise or discipline so as

to prevent such conduct.” Chinchello v. Fenton, 805 F.2d 126, 133 (3d Cir.

1986).

Here, there are no specific allegations regarding the conduct of any

individual defendant with respect to Oren’s placement in administrative

custody. Absent any specific allegations of personal involvement by these

defendants, the plaintiff has failed to state a plausible § 1983 claim

against any of them. See Simonton v. Ryland-Tanner, 836 Fed. App’x 81,

84 (3d Cir. 2020) (per curiam); Evancho v. Fisher, 423 F.3d 347, 353 (3d

Cir. 2005); see also Caristo v. Blairsville-Saltsburg Sch. Dist., 370 F.

Supp. 3d 554, 569 n.21 (W.D. Pa. 2019) (“Plaintiff must plead facts

demonstrating the specific personal involvement of each Individual

Defendant as to any Constitutional deprivations she alleges. Group

pleading as to such matters will not suffice.”).

Accordingly, the plaintiff’s § 1983 claims concerning his placement

in administrative custody will be dismissed for failure to state a claim

upon which relief can be granted, pursuant to Rule 12(b)(6) of the Federal

Rules of Civil Procedure.

D. 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). This instruction applies equally to pro se plaintiffs and

those represented by counsel. Alston v. Parker, 363 F.3d 229, 235 (3d Cir.

2004). In this case, based on the facts alleged in the complaint and the

additional evidence proffered by the plaintiff as exhibits to his brief in

opposition to the motion to dismiss,7 it is clear that amendment would be

futile. See Jones v. SCO Family of Servs., 202 F. Supp. 3d 345, 350 n.4

7 The plaintiff has proffered documentary exhibits in an effort to

establish personal involvement by Secretary Wetzel and Superintendent

Harry. The proffered exhibits purport to document Oren’s administrative

appeals to Superintendent Harry and Secretary Wetzel regarding his

placement in administrative custody. But it is well-settled that if a prison

official’s only involvement is investigating or ruling on an inmate’s

grievance after the incident giving rise to the grievance has occurred,

there is no personal involvement on the part of that official. See Rode,

845 F.2d at 1208; see also Brooks v. Beard, 167 Fed. App’x 923, 925 (3d

Cir. 2006) (per curiam) (characterizing such a claim as legally frivolous).

“[T]he mere fact that an official receives and reviews a letter or grievance

appeal is insufficient to establish personal involvement (i.e., failure to

respond or react does not establish that the official endorsed or

acquiesced in the conduct at issue).” Hennis v. Varner, Civil Action No.

12-646, 2014 WL 1317556, at *9 (W.D. Pa. Mar. 31, 2014).

(S.D.N.Y. 2016) (considering evidence outside the pleadings for limited

purpose of whether to grant leave to amend); Lauter v. Anoufrieva, 642

F. Supp. 2d 1060, 1078 (C.D. Cal. 2009) (“A court may consider factual

allegations outside of the complaint in determining whether to grant

leave to amend.”); U.S. Fire Ins. Co. v. United Limousine Serv., Inc., 303

F. Supp. 2d 432, 445 (S.D.N.Y. 2004). Therefore, the plaintiff’s claims will

be dismissed without leave to amend.

IV. CONCLUSION

For the foregoing reasons, the defendants’ motion will be granted

and this action will be dismissed for failure to state a claim upon which

relief can be granted.

An appropriate order follows.

Dated: March 9, 2022 s/Joseph F. Saporito, Jr.

JOSEPH F. SAPORITO, JR.

United States Magistrate Judge