Simms v. Houser

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF PENNSYLVANIA

SHAWN M. SIMMS, :

CIVIL ACTION NO. 3:21-0321

Plaintiff :

(JUDGE MANNION)

v. :

MORRIS L. HOUSER, et al., :

Defendants :

MEMORANDUM

I. BACKGROUND

Plaintiff, an inmate formerly confined in the Rockview State

Correctional Institution (SCI-Rockview)1, Bellefonte, Pennsylvania, filed the

above captioned civil rights action pursuant to 42 U.S.C. §1983. (Doc. 1).

The named Defendants are the following SCI-Rockview employees: Deputy

Warden Houser, Deputy Warden Rivello, LPM Miller, Security Lt. Sherman,

Security Captain VanGorder, PREA Lt. Rutherford and Dr. Byerlee. Id.

(Doc.15).

Plaintiff’s complaint states:

On 4-6-20, I wrote a letter to an outside DOC official about my

problems here in Rockview that entailed PREA related issues.

The matter was referred to defendant Byerlee (psych at

Rockview). I then engaged in constitutionally protected conduct

1 Plaintiff is currently housed at the State Correctional Institution, Coal

Township, Pennsylvania. (Doc. 78).

(free speech via PREA report; 42 U.S.C. §15601) and told

Byerlee that PREA violations were enacted on me by multiple

people in multiple places over the course of 10 years (this is

generally paraphrased). Places include Rockview, SCI-

Greensburg, and my county jail. Byerlee intentionally sabotaged

certain parts of my report that lead to an adverse action; a

misconduct (DC-141). The misconduct exposed highly sensitive

medical type information and also labeled me as an informant for

making an official report to staff on a fellow inmate(s). The

misconduct was then entered into the DOC computer which

enabled non-essential staff to view it and show other inmates. As

an additional consequence, the gang members involved in the

PREA violations seen this information, resulting in a “hit” being

put on me. The causal connection is that the 141 misconduct was

based on the report Byerlee sabotaged. Punishing PREA victims

or exposing their reports to non-essential staff serves no

governmental, penological or public interest and the actions of

the defendant would certainly deter victims from making a report

in the future. I also aver that this information shouldn’t ever be

exposed in any way under the well-established rape shield laws.

Acting off of defendant Byerlee’s fraudulent report, defendant

Rutherford and Miller did a “PREA investigation.” The

constitutionally protected conduct was the PREA report. While

these 2 were not involved in taking the report, it is their

responsibility to do a “follow-up,” monitor for retaliation, monitor

victims, provide counseling, and make sure that victims can meet

with staff. If they would’ve followed their own policy/procedures,

the report could’ve been corrected, and a proper investigation

would’ve been done. Instead, they violated their own

policy/procedures and never once came to speak to me about

the report. Since they violated policy, the adverse action was a

141 misconduct that exposed highly sensitive medical type

information to non-essential personnel (via DOC computer) that

also labeled plaintiff as a “snitch.” Inmate also seen this 141

misconduct and as a result, the gang members who enacted the

PREA violations on him put a “hit’ on plaintiff, the causal

connection is the sabotaged report and subsequently botched

investigation coupled with blatant policy/procedure violations

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resulted in the 141 misconduct and threats by gang members

punishing PREA victims or exposing their reports serves no

governmental, penological or public interest and the actions of

defendants would certainly deter victims from making a report in

the future. I further aver that this type of information should never

be exposed for any reason (especially to non-essential

personnel) under the well-established rape shield laws.

On 10-7-20, PRC (defendants Houser, Miller and Rivello) gave

the orders to let me back out to population. This made me choose

between being stabbed to death/catching COVID 19 or staying

in the psychological torture cell (solitary confinement). I refused

to go to population to preserve my life and I was given a

misconduct for doing so. I submitted an “inmates version” which

was read by the hearing examiner, then forwarded to security.

Nothing happened to my benefit, only to my detriment (30 days

punishment). I finished exhausting to final review with no change.

This process was then repeated 3 more times with no results (11-

5-20, 12-3-20 and 12-30-20). The only variation was on 11-5-20

when PRC intentionally ordered me to go to an “Enhanced

Quarantine” Housing unit with confirmed COVID 19 cases during

a mass outbreak within Rockview (including the Housing unit I

was supposed to go to). I tried to grieve the PREA issue, but

since a misconduct was issued, DOC policy prevents me from

filing grievances on misconducts/ issues misconducts were

issued over. The misconduct was later dismissed without

prejudice but the damage was already done. This also prevented

me from remedies associated with misconducts. There are no

other remedies available to me.

On 1-14-21, I was placed on A/C pending transfer to the “PCU”

in SCI-Forest where it is notorious for violence and a high

concentration of the same gang members I’m seeking protection

from.

(Doc. 1 at 7-11). He alleges Eighth and Fourteenth Amendment violations as

well as conspiracy claims under 42 U.S.C. §1985(3) and 42 U.S.C. §1986

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and intentional infliction of emotional distress. Id. at 11-17. For relief, Plaintiff

seeks nominal, compensatory, and punitive damages, as well as injunctive

relief in the form of “body cameras with audio for all DOC staff”, changes in

policy related to “grieving incidents that misconducts were issued over”, and

“a change in policy preventing any PREA related information to be available

to non-essential staff” and “preventing misconducts being issued to PREA

victims.” Id. at 19. Plaintiff also requests “an outside party (outside the DOC)

to investigate staff misconduct alleged in grievances” and “a change in policy

that enables the hearing examiner to put an inmate on P/C per inmate’s

request.” Id.

By Memorandum and Order dated November 24, 2021, Defendants’

motion to dismiss Plaintiff’s complaint was granted as to Plaintiff’s PREA

claims and Plaintiff’s Fourteenth Amendment Due Process claims with

respect to misconduct challenges. (Docs. 48, 49). Defendants’ motion to

dismiss Plaintiff’s Eighth Amendment failure to protect, Fourteenth

Amendment Equal Protection and Intentional Infliction of Emotions Distress

claims was also granted, with leave to Plaintiff to file an amended complaint

regarding these claims. Id.

On December 22, 2021, Plaintiff filed his amended complaint against

all named Defendants except Lt. Rutherford and Brad Byerlee. (Doc. 56).

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Defendants Rutherford and Byerlee were terminated as named Defendants

on December 22, 2021.

Presently before the Court is remaining Defendants’ motion to dismiss

Plaintiff’s amended complaint. (Doc. 59). For the reasons set forth below, the

Court will grant Defendants’ motion to dismiss Plaintiff’s amended complaint.

II. ALLEGATIONS IN AMENDED COMPLAINT

Plaintiff states that he has “informed all Defendants of threats made to

[him] by gang members who’ve previously abused [him], that [he] fear[s] for

[his] life and [he] wants protective custody because [he] fear[s] being abused

again.” (Doc. 56 at 4). Plaintiff claims that although “Defendants

acknowledge they are aware of the risks to [Plaintiff’s] life (made by [Plaintiff]

reporting to them) and admit to active involvement in denying [Plaintiff’s]

requests through direct admission or indirect omission,” they “make

boilerplate responses saying they reviewed all evidence, appeal, hearing,

without providing an iota of substantiating rationale (documents, witnesses,

etc.) while at the same time blaming [Plaintiff] for not ‘providing evidence’.”

Id. Plaintiff claims that he is “trying to satisfy PRC’s demand for ‘evidence’ in

order to be granted P/C [status]” and Defendants “evade a direct answer.”

Id.

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Plaintiff claims that “as a result of Defendants’ refusal to protect [him],

[he] acquired 4 misconducts,” and “these misconducts were the direct

manifestation of Defendants’ intentional furtherance of abuse by authorizing

[his] release to general population amongst [his] former abusers, rapists and

people who want to kill [him].” Id. He states that “at no time was [he] ever

given P/C [status] and [he] was forced to stay in solitary confinement under

punishment status to preserve [his] right to live free from abuse.” Id. He

claims that he is “still housed under punishment status because [he] fear[s]

for [his] life” and “fear being attacked/raped and [he fears] that as long as

[he] remain[s] in a men’s facility, it’ll happen again especially at Rockview

where it has already happened.” Id. Plaintiff concludes that “in male facilities,

LGBTQ+ people are up to 9 times more likely to be assaulted and/or

victimized sexually than other inmates” and “similar statistics go for ‘snitches’

and sex offenders,” which Plaintiff claims “to carry all 3 labels; the

Defendants knew of all of this from the beginning” and “denial any/all

protection.” Id.

Thus, Plaintiff claims violations of the Eighth Amendment, in that

Defendants have been deliberately indifferent to protecting him and the

Fourteenth Amendment’s equal protection, claiming that he has been

“singled out for disparate treatment due to the fact that other inmates with

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‘snitch, gay, child molester’ labels or have serious problems (sexual abuse

victims, assault victims, threats to their life) are routinely granted P/C [status]

whereas [Plaintiff] is denied without any rational/justifiable reason.” Id.

For relief he seeks a change in policy that “gives hearing examiners

ability to grant P/C status to inmates under specified circumstances;” a

change in policy that “allows grievances to be filed on issues misconducts

were issued over to enable an investigation on the inmate’s conduct and

staff;” a change in policy that “mandates outside party (non-DOC affiliated)

to conduct misconduct hearings and grievance investigations and allowing

the party to have access to all evidence (including cameras); mandating body

cameras with audio for all DOC staff/volunteers to wear while on DOC

property or conducting DOC business/assignments/duties; to be removed

from D/C status and put into a facility consistent with [Plaintiff’s] gender

identity (female) in general population; and to have all misconducts resulting

from Defendants’ abuse esponged (sic).” Id.

III. LEGAL STANDARDS

A. MOTION TO DISMISS

A motion to dismiss tests the legal sufficiency of a complaint. It is

proper for the court to dismiss a complaint in accordance with Rule 12(b)(6)

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of the Federal Rules of Civil Procedure only if the complaint fails to state a

claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). When

reviewing a motion to dismiss, the court “must accept all factual allegations

in the complaint as true, construe the complaint in the light favorable to the

plaintiff, and ultimately determine whether plaintiff may be entitled to relief

under any reasonable reading of the complaint.” Mayer v. Belichick, 605 F.3d

223, 229 (3d Cir. 2010).

In reviewing a motion to dismiss, a court must “consider only the

complaint, exhibits attached to the complaint, matters of public record, as

well as undisputedly authentic documents if the [plaintiff’s] claims are based

upon these documents.” Id. at 230.

In deciding whether a complaint fails to state a claim upon which relief

can be granted, the court is required to accept as true all factual allegations

in the complaint as well as all reasonable inferences that can be drawn from

the complaint. Jordan v. Fox Rothschild, O'Brien & Frankel, Inc., 20 F.3d

1250, 1261 (3d Cir. 1994). These allegations and inferences are to be

construed in the light most favorable to the plaintiff. Id. However, the court

“need not credit a complaint’s bald assertions or legal conclusions when

deciding a motion to dismiss.” Morse v. Lower Merion Sch. Dist., 132 F.3d

902, 906 (3d Cir. 1997). Further, it is not proper to “assume that [the plaintiff]

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can prove facts that [he] has not alleged....” Associated Gen. Contractors of

Cal. v. California State Council of Carpenters, 459 U.S. 519, 526 (1983).

Following the rule announced in Ashcroft v. Iqbal, “a pleading that

offers labels and conclusions or a formulaic recitation of the elements of a

cause of action will not do.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

Rather, a complaint must recite enough factual allegations to raise the

plaintiff's claimed right to relief beyond the level of mere speculation. Id. To

determine the sufficiency of a complaint under the pleading regime

established by the Supreme Court, the court must engage in a three-step

analysis:

First, the court must take note of the elements a plaintiff must

plead to state a claim. Second, the court should identify

allegations that, because they are no more than conclusions, are

not entitled to the assumption of truth. Finally, where there are

well-pleaded factual allegations, a court should assume their

veracity and then determine whether they plausibly give rise to

an entitlement for relief.

Santiago v. Warminster Twp., 629 F.3d 121, 130 (3d Cir. 2010) (quoting

Iqbal, 556 U.S. at 675, 679). “In other words, a complaint must do more than

allege the plaintiff’s entitlement to relief” and instead must ‘show’ such an

entitlement with its facts.” Fowler v. UPMC Shadyside, 578 F.3d 203, 211

(3d Cir. 2009).

As the court of appeals has observed:

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The Supreme Court in Twombly set forth the “plausibility”

standard for overcoming a motion to dismiss and refined this

approach in Iqbal. The plausibility standard requires the

complaint to allege “enough facts to state a claim to relief that is

plausible on its face.” Twombly, 550 U.S. at 570, 127 S.Ct. 1955.

A complaint satisfies the plausibility standard when the factual

pleadings “allow[ ] the court to draw the reasonable inference that

the defendant is liable for the misconduct alleged.” Iqbal, 129

S.Ct. at 1949 (citing Twombly, 550 U.S. at 556, 127 S.Ct. 1955).

This standard requires showing “more than a sheer possibility

that a defendant has acted unlawfully.” Id. A complaint which

pleads facts “merely consistent with” a defendant's liability, [ ]

“stops short of the line between possibility and plausibility of

‘entitlement of relief.’ ” Id. (citing Twombly, 550 U.S. at 557, 127

S.Ct. 1955).

Burtch v. Milberg Factors, Inc., 662 F.3d 212, 220-21 (3d Cir. 2011).

In undertaking this task, the court generally relies only on the

complaint, attached exhibits, and matters of public record. Sands v.

McCormick, 502 F.3d 263, 268 (3d Cir. 2007).

The court may also consider “undisputedly authentic document[s] that

a defendant attached as an exhibit to a motion to dismiss if the plaintiff's

claims are based on the [attached] documents.” Pension Benefit Guar. Corp.

v. White Consol. Indus., 998 F.2d 1192, 1196 (3d Cir. 1993). Moreover,

“documents whose contents are alleged in the complaint and whose

authenticity no party questions, but which are not physically attached to the

pleading, may be considered.” Pryor v. Nat’l Collegiate Athletic Ass’n, 288

F.3d 548, 560 (3d Cir. 2002); see also, U.S. Express Lines, Ltd. v. Higgins,

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281 F.3d 383, 388 (3d Cir. 2002) (holding that “[a]lthough a district court may

not consider matters extraneous to the pleadings, a document integral to or

explicitly relied upon in the complaint may be considered without converting

the motion to dismiss in one for summary judgment.”) However, the court

may not rely on other parts of the record in determining a motion to dismiss.

Jordan v. Fox, Rothschild, O'Brien & Frankel, 20 F.3d 1250, 1261 (3d Cir.

1994).

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

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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)).

Moreover, a defendant cannot be liable for a violation of a plaintiff’s

civil rights unless the defendant was personally involved in the violation.

Jutrowski v. Twp. of Riverdale, 904 F.3d 280, 289 (3d Cir. 2018). The

defendant's personal involvement cannot be based solely on a theory of

respondeat superior. Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir.

1988). Rather, for a supervisor to be liable for the actions of a subordinate,

there must be allegations of personal direction or actual knowledge and

acquiescence. Id.

IV. DISCUSSION

A. EIGHTH AMENDMENT FAILURE TO PROTECT CLAIM

The Eighth Amendment of the United States Constitution imposes a

duty on prison officials to “take reasonable measures to guarantee the safety

of inmates.” Hudson v. Palmer, 468 U.S. 517, 526-27 (1984). This includes

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the general duty to “protect prisoners from violence at the hands of other

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

Farmer v. Brennan, 511 U.S. 825, 833 (1994)). To state a viable failure-to-

protect claim, the plaintiff must establish that: (1) he was incarcerated under

conditions posing a substantial risk of serious harm; (2) the defendant was

deliberately indifferent to that substantial risk; and (3) the defendant’s

deliberate indifference caused the plaintiff to suffer harm. Bistrian v. Levi,

696 F.3d 352, 367 (3d Cir. 2012), abrogated on other grounds by Mack v.

Yost, 968 F.3d 311 (3d Cir. 2020). The standard for deliberate indifference

is subjective; thus, the prison official “must actually have known or been

aware of the excessive risk to inmate safety.” Beers-Capitol v. Whetzel, 256

F.3d 120, 125 (3d Cir. 2001).

To the extent that Plaintiff is alleging an Eighth Amendment, failure to

protect claim, being labeled a “snitch” or a “rat” can be a dangerous

designation in prison. See, e.g., Easley v. Tritt, 2021 WL 978815, at *13

(M.D. Pa. Mar. 16, 2021) (citing Moore v. Mann, 823 Fed. Appx. 92, 96 (3d

Cir. 2020)) (per curiam) (recognizing that “other circuits have held that prison

officials’ failure to protect an inmate labeled a ‘snitch’ constitutes deliberate

indifference”).

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In its November 24, 2021 Memorandum, this Court, finding that

Plaintiff’s original complaint, in its current form, did not set forth proper factual

allegations to support an Eighth Amendment failure to protect claim, afforded

Plaintiff an opportunity to file an amended complaint specifically alleging the

personal involvement of the named Defendants regarding his Eighth

Amendment violations. (Doc. 48). Plaintiff’s amended complaint, however,

fairs no better.

Again, while Plaintiff’s amended complaint raises general allegations

of threats made to him by gang members, and that Defendants are aware of

these threats, Plaintiff sets forth no overt intentional act alleged on the part

of the named Defendants in his amended complaint. In fact, in support of his

amended complaint, Plaintiff submits a copy of the Facility Manager’s Appeal

Response to Plaintiff’s grievance, notifying Plaintiff of his deficiencies in his

failure to protect claim as follows:

I have reviewed the initial grievance, the rejection of this

grievance, and the subsequent appeal of your issues relating to

a misconduct received and security “failing to protect you.”

Your grievance was appropriately rejected. You did not indicate

in your initial grievance how Security failed to protect you. You

stated you were forced to “risk your life or stay on DC status.”

You did not state how you were risking your life. You indicate in

your appeal that you were being forced to go to population where

there is a hit out on you but provide no evidence of such.

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In your initial grievance you ask that the DC time be removed and

replaced with AC status because this situation is not of your

doing. This statement is inaccurate, you refused an order and

you were issued a misconduct per policy. It is apparent that you

are in fact grieving the misconduct issued to you. There is no

deliberate indifference to your “safe and sanitary rights” as you

claim.

(Doc. 56-1 at 16). The Program Review Committee’s review of Plaintiff’s

misconduct appeal confirms Plaintiff’s unsubstantiated allegations, finding

the following:

Inmate Simms is appealing the Hearing Examiner’s decision

based on selections “a” and “b” above. He states that he

disobeyed orders to move because of threats made to his life by

gang members and he feels unsafe in General Population. He

further states that he refused to move due to the COVID

outbreak. He believes that PRC’s decision to release him was

retaliation for a lawsuit filed against PRC. He is asking PRC to

remove him from DC status to AC status as he fears for his life.

Upon review of the report and misconduct, the record of the

hearing, the appeal, and all relevant information, PRC finds that

all procedures employed were in accordance with law,

department directives and regulations and that the punishment

was proportionate to the offense.

PRC finds no error in the process or adjudication of the written

report. Security has previously been notified of Mr. Simms’

allegations of a “hit” against him and threats to his personal

safety. There are no verified threats against Mr. Simms. There

was no retaliation involved in the release of Mr. Simms to an

enhanced quarantine unit. All precautions are being taken on the

housing unit to ensure the highest level of protection from

COVID-19 virus. The punishment is within sanctioning guidelines

and not considered to be excessive. Mr. Simms is reminded that

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he can received a punishment of up to 90 days DC for each Class

I misconduct charge.

(Doc. 56-1 at 25). The SCI-Rockview Superintendent upheld the Hearing

Examiner and PRC’s determination of lack of evidence, finding

The basis of your appeal centers around your request for

protective custody status. This has been investigated by the

Security Office and determined to be invalid. In fact, you fail to

provide any name or number of any inmate from which you fear.

In addition, you provide no information whatsoever to support

your claims. No leniency is warranted in this instance.

(Doc. 56-1 at 44). Plaintiff’s own supporting document demonstrate Plaintiff

has failed to allege a failure to protect claim.

Thus, the Court finds Defendants were not deliberately indifferent

because, even if there could be a substantial risk of harm to Simms, there

are no specific allegations of who Plaintiff feared, which specific Defendants

were put on notice and which Defendants refused protection after having

been put on notice. As such, Defendants cannot be charged with stopping

non-specific “gang members” who have been accused of non-specific

threats or prior attacks. These allegations do not provide notice. See Tabb

v. Hannah, 2012 WL 3113856, at *6 (M.D. Pa. July 30, 2012). Deliberate

indifference requires that a prison official know of and disregard an excessive

risk to inmate health or safety. See Farmer, 511 U.S. at 837, 114 S. Ct. 1970.

Moreover, a defendant must be shown by the allegations contained in the

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complaint to have been personally involved or have actual knowledge of and

acquiesced in the commission of the wrong. See Rizzo v. Goode, 423 U.S.

362 (1976). Liability can only be imposed if that official played an “affirmative

part” in the complained of misconduct. See Chincello v. Fenton, 805 F.2d

126, 133 (3d Cir. 1986). Reaffirmed in Evancho v. Fisher, 423 F.3d 347 (3d

Cir. 2005), this personal involvement requirement has long been established

in the Third Circuit. See Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir.

1988).Thus, Plaintiff’s failure to protect claim is unsupported by the evidence

and will be dismissed.

B. FOURTEENTH AMENDMENT EQUAL PROTECTION

The Equal Protection Clause requires all persons “similarly situated” to

be treated alike by state actors. See City of Cleburne v. Cleburne Living Ctr.,

473 U.S. 432, 439 (1985). Traditionally, “[i]n order to establish a prima facie

case of discrimination under the Equal Protection Clause, [plaintiffs] need[ ]

to prove that they were members of a protected class [such as race or

gender] and that they received different treatment than that received by

similarly-situated individuals.” See Oliveira v. Twp. of Irvington, 41 F. App’x

555, 559 (3d Cir. 2002). However, where a plaintiff alleges that he alone “has

been intentionally treated differently from others similarly situated and that

there is no rational basis for the difference in treatment,” he may raise a

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“class of one” equal protection claim. See Engquist v. Or. Dep’t of Agric., 553

U.S. 591, 598 (2008). To maintain such a claim, a plaintiff must establish that

he has been irrationally singled out for disparate treatment. See id. “[A]t the

very least, to state a claim under [a class of one theory], a plaintiff must allege

that (1) the defendant treated him differently from others similarly situated,

(2) the defendant did so intentionally, and (3) there was no rational basis for

the difference in treatment.” Phillips v. County of Allegheny, 515 F.3d 224,

243 (3d Cir. 2008). Persons are “similarly situated” for equal protection

purposes when they are alike “in all relevant aspects.” Startzell v. City of

Phila., 533 F.3d 183, 203 (3d Cir. 2008) (quoting Hill v. City of Scranton, 411

F.3d 118, 125 (3d Cir. 2005)).

Here, Plaintiff’s original complaint failed to plead any specific factual

content to show that he was treated differently from others who were

“similarly situated” to him in “all relevant aspects.” Thus, Plaintiff was directed

to file an amended complaint to cure this deficiency. (Doc. 24).

Plaintiff claims that he has “been intentionally singled out for disparate

treatment due to the fact that other inmates with ‘snitch, gay, child molester’

labels or have other serious problems are routinely granted P/C whereas [he]

is denied without any rational/justifiable reason.” (Doc. 56 at 8). Additionally,

Plaintiff claims that Defendants have “treated [him] differently from other

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similarly situated ‘in all relevant aspects’ because [he] has all 3 labels that

render a significant risk to [his] life.” Id.

Much like his original complaint, Plaintiff’s conclusory averments of

disparate treatment in his amended are insufficient to state a plausible equal

protection violation. See Joey’s Auto Repair & Body Shop v. Fayette Cty.,

785 F. App’x 46, 49 (3d Cir. 2019) (dismissing plaintiff's “class of one” equal

protection claim where the plaintiff identified only one comparator business

in its pleading and failed to allege details as to how the comparator was a

“similarly situated” entity; thus, court could not conclude that comparator

business was alike “in all relevant aspects”); see also Benjamin v. Clark, No.

1:20-CV-1991, 2021 WL 391987, at *7 (M.D. Pa. Feb. 4, 2021) (“When

alleging the existence of similarly situated individuals, plaintiffs ‘cannot use

allegations...that amount to nothing more than conclusory, boilerplate

language to show that he may be entitled to relief,’ and ‘bald assertion[s] that

other[s]...were treated in a dissimilar manner’ will not suffice.”) (citing Young

v. New Sewickley Twp., 160 F. App’x 263, 266 (3d Cir. 2005)) (alterations

and ellipses in the original).

To the extent that Plaintiff alleges facts about one “comparator,” named

“James Brown” who Plaintiff claims “was granted P/C and a transfer under

similar situation,” (Doc. 56 at 9), Plaintiff fail to describe how the comparator

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was “similarly situated,” further Plaintiff’s assertion of inequity is belied by

Plaintiff’s recent notice of address change, indicating that Plaintiff, too, has

been transferred from the custody of the “malicious Defendants who are

holding [him] hostage,” to SCI-Coal Township. (See Doc. 78). Thus, the

Court will grant Defendants’ motion to dismiss Plaintiff’s Fourteenth

Amendment equal protection claim.

D. INTENTIONAL INFLICTION OF EMOTION DISTRESS

Plaintiff’s original complaint did not contain sufficient allegations with

respect to the nature and type of injury or injuries he suffered as a result of

the conduct alleged on the part of Defendants to support his IIED claim. (Doc.

48). Thus, the court dismissed Plaintiff’s IIED claim, with an opportunity for

Plaintiff to amend the claim with allegations directed at specific Defendants.

Id.

Plaintiff’s amended complaint alleges that “Defendants displayed

extreme outrageous conduct by ordering a victim to ‘return to population’ to

live amongst inmate who’ve already abused him and threaten to kill him,

while simultaneously denying him mandatory protection/protective measures

(such as P/C and/or a transfer).” (Doc. 56 at 9). Plaintiff claims that

Defendants “did this intentionally and recklessly,” causing “emotional

distress (depression, anxiety) and severe emotional distress like paranoia

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(mistrust in staff, fear of COVID germs from malicious staff causing

excessive scrubbing of cell constantly), anxiety (resulting in shaking of

hands/legs, digestive issues) and depression (resulting in missed meals –

which resulted in additional threats from staff). Id.

To state a claim for the state tort of intentional infliction of emotional

distress (“IIED”), a plaintiff must allege: (1) extreme and outrageous conduct;

(2) intentional or reckless conduct; (3) conduct caused the emotional

distress; and (4) severe emotional distress. See, e.g., Smith v. Washington

Area Humane Soc’y, No. 2:19-cv-1672, 2020 WL 6364762, *8 (W.D. Pa. Oct.

29, 2020) (citation omitted). Importantly, the “[p]laintiff must allege physical

manifestations of the emotional distress.” Id. (emphasis added) (citing

Reeves v. Middletown Athletic Ass’n, 866 A.2d 1115, 1122 (Pa. Super. Ct.

2004)).

Thus, “a plaintiff ‘must suffer some type of resulting physical harm due

to the defendant’s outrageous conduct.’ ” Richardson v. Barbour, No. 2:18-

cv-1758, 2020 WL 4815829, *14 (E.D. Pa. Aug. 19, 2020) (quoting Reedy v.

Evanson, 615 F.3d 197, 231 (3d Cir. 2010)). “It is not enough for a plaintiff

to generically plead the elements of a claim for IIED, but rather, sufficient

detail must be asserted to make out a plausible claim.” Id. (quoting M.S. ex

rel. Hall v. Susquehanna Twp. School Dist., 43 F. Supp.3d 412, 430-31 (M.D.

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Pa. 2014) (“Although Plaintiffs allege M.S. suffered ‘physical harm’ as a

result of the emotional distress, such a general, non-specific averment has

been found insufficient to survive motions to dismiss.”) and citing Dobson v.

Milton Hershey School, 356 F. Supp.3d 428, 439-40 (M.D. Pa. 2018) (holding

plaintiff's bald allegations of “physical harm” and “physical manifestations of

emotional distress” were not enough, without more, to set forth a plausible

IIED claim)); see also Hoy v. Angelone, 720 A.2d 745, 755 (Pa. 1998)

(identify IIED as a “most limited” tort); Gomez v. Markley, No. 2:07-cv-868,

2011 WL 112886, *1 (W.D. Pa. Jan. 13, 2011) (“in order to state a claim for

[IIED] under Pennsylvania Law, a plaintiff must establish physical injury or

harm ... at the very least, existence of the alleged emotional distress must

be supported by competent medical evidence.”) (internal citations and

quotation omitted).

Plaintiff’s amended complaint again misses the mark. Plaintiff was

permitted to file an amended complaint containing, not only the nature and

type of injury or injuries he suffered as a result of the conduct alleged on the

part of Defendants, but, more importantly, the personal involvement of each

named Defendant in the alleged constitutional violation. As Plaintiff has failed

to cure the deficiency of his original complaint, the Court will grant

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Defendants’ motion to dismiss Plaintiff’s complaint for failure to state a claim

for IIED against any Defendant.

V. LEAVE TO AMEND

The Third Circuit has instructed that if a 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). The Third Circuit

has also acknowledged that a district court has “substantial leeway in

deciding whether to grant leave to amend.” Lake v. Arnold, 232 F.3d 360,

373 (3d Cir. 2000); see also Ruffin v. Mooney, No. 3:16-1987, 2017 WL

3390361, at *2 (M.D. Pa. Jan. 31, 2017) (dismissing prisoner-plaintiff’s case

without prejudice where it was unclear whether he was seeking relief under

§1983 or a habeas statute). Here, the Court has already dismissed basically

identical claims and finds that any further attempts to amend would be futile.

See Jones v. Unknown D.O.C. Bus Driver & Transp. Crew, 944 F.3d 478,

483 (3d Cir. 2019) (where inmate plaintiff “has already had two chances to

tell his story ... giving him further leave to amend would be futile.”).

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VI. CONCLUSION

For the above stated reasons, the Court will grant Defendants’ motion

to dismiss Plaintiff’s amended complaint. (Doc. 59). As the facts Simms

alleges in the amended complaint do not support a plausible claim for a

constitutional violation, additional attempts by Simms to amend would be

futile. See Jones, 944 F.3d at 483.

An appropriate Order follows.

s/ Malachy E. Mannion

MALACHY E. MANNION

United States District Judge

Dated: September 29, 2022

21-0321-02

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