Barrick v. Perry County Prison

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

JOSHUA BARRICK, : CIVIL ACTION NO. 1:22-CV-1432

:

Plaintiff : (Judge Conner)

:

v. :

:

PERRY COUNTY PRISON, WARDEN :

KAREN BARCLAY, LIEUTENANT :

DOUGLAS TWIGG, SERGEANT :

GREG KLINE, SERGEANT JASON :

KLUNK, CORRECTIONAL OFFICER :

FRY, CORRECTIONAL OFFICER :

DICKEN, CORRECTIONAL OFFICER :

MCMULLAN, :

:

Defendants :

MEMORANDUM

Plaintiff Joshua Barrick (“Barrick”), an inmate who was housed at all

relevant times at the Perry County Prison, in New Bloomfield, Pennsylvania,

commenced this action pursuant to 42 U.S.C. § 1983 setting forth several causes of

action against the defendants. (Doc. 1). The matter is proceeding via an amended

complaint. (Doc. 26). Named as defendants are the Perry County Prison, Warden

Karen Barclay, Lieutenant Douglas Twigg, Sergeant Greg Kline, Sergeant Jason

Klunk, Correctional Officer Fry, Correctional Officer Dicken, and Correctional

Officer McMullan. Before the court is a Rule 12(b) motion (Doc. 29) to dismiss by

defendants Perry County Prison, Barclay, Twigg, Kline, Klunk, and Fry. For the

reasons set forth below, the court will grant the motion.

I. Factual Background & Procedural History

On July 11, 2022, Barrick was committed to the Perry County Prison based

on criminal charges filed against him. (Doc. 26 ¶ 11). Barrick alleges that, on

August 1, 2022, his paramour contacted a bail bondsman to post his bail. (Id. ¶ 13).

However, the bondsman did not post Barrick’s bail because he was informed that

new criminal charges were filed against Barrick and he “wanted to wait til[l] after

plaintiff’s preliminary hearing the following day on August 2, 2022.” (Id. ¶¶ 15, 29).

Barrick then asked defendant Fry and other correctional officers for permission to

place a bail call. (Id. ¶¶ 19-21). When Barrick was being escorted to the intake area

to make his bail call, there were two state troopers waiting for Barrick. (Id. ¶¶ 22-

24). The troopers transported Barrick to the state police barracks to book him on

new criminal charges. (Id. ¶ 24).

Barrick asserts that there were no new criminal charges filed against him

when prison officials allegedly informed the bondsman of the new criminal charges

on August 1, 2022. (Id. ¶¶ 16, 25, 40). He alleges that he was “illegally detained” for

2½ to 3 hours when prison officials alerted the bondsman of the new criminal

charges. (Id. ¶ 25). Barrick alleges that either defendant Barclay or defendant

Kline reported the existence of new criminal charges to the bondsman. (Id. ¶¶ 42-

43, 46). He further alleges that “a person cannot knowingly lie” to a bail bondsman

regarding the existence of new criminal charges to interfere with the posting of bail.

(Id. ¶ 26).

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Barrick sets forth the following claims: interference with the right to bail,

violation of the right to equal protection under the Fourteenth Amendment, First

Amendment retaliation, failure to train, abuse of process, illegal seizure, false

arrest, false imprisonment, conspiracy, Monell1 liability, negligence, emotional

distress, trespass upon the case, and loss of consortium. (Id. ¶¶ 63-76).

Defendants move to dismiss all claims pursuant to Rule 12(b)(6). The motion

is fully briefed and ripe for resolution.2

II. Legal Standard

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

dismissal of complaints that fail to state a claim upon which relief can be granted.

FED. R. CIV. P. 12(b)(6). When ruling on a motion to dismiss under Rule 12(b)(6), the

1 Monell v. New York City Dep’t of Soc. Servs., 436 U.S. 658, 691 (1978).

2 Barrick’s brief in opposition to defendants’ motion to dismiss contains facts

that are not expressly set forth in the amended complaint. (See Doc. 35). The court

may not consider such allegations because a complaint cannot be amended by way

of an opposition brief. See Pennsylvania ex rel. Zimmerman v. PepsiCo, Inc., 836

F.2d 173, 181 (3d Cir. 1988) (“[I]t is axiomatic that the complaint may not be

amended by the briefs in opposition to a motion to dismiss.”).

Barrick only contests the dismissal of his bail interference claim. (See Doc.

35). He does not contest the motion to dismiss his remaining claims. (See id.) A

brief in opposition to a motion to dismiss that fails to respond to a substantive

argument to dismiss a particular claim results in the waiver or abandonment of that

claim. See Dreibelbis v. Scholton, 274 F. App’x 183, 185 (3d Cir. 2008) (affirming

district court’s finding of waiver as to an argument where plaintiff had opportunity

to address it in his opposition brief but failed to do so); D’Angio v. Borough of

Nescopeck, 34 F. Supp. 2d 256, 265 (M.D. Pa. 1999) (finding claims waived where

plaintiff failed to address defendant’s argument in his brief in opposition to a

motion to dismiss). Accordingly, other than the bail interference claim, Barrick’s

claims are deemed abandoned and will be dismissed.

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court must “accept as true all [factual] allegations in the complaint and all

reasonable inferences that can be drawn therefrom, and view them in the light most

favorable to the plaintiff.” Kanter v. Barella, 489 F.3d 170, 177 (3d Cir. 2007)

(quoting Evancho v. Fisher, 423 F.3d 347, 350 (3d Cir. 2005)). Although the court is

generally limited in its review to the facts contained in the complaint, it “may also

consider matters of public record, orders, exhibits attached to the complaint and

items appearing in the record of the case.” Oshiver v. Levin, Fishbein, Sedran &

Berman, 38 F.3d 1380, 1384 n. 2 (3d Cir. 1994); see also In re Burlington Coat

Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997).

Federal notice and pleading rules require the complaint to provide “the

defendant notice of what the . . . claim is and the grounds upon which it rests.”

Phillips v. Cty. of Allegheny, 515 F.3d 224, 232 (3d Cir. 2008) (quoting Bell Atl. Corp.

v. Twombly, 550 U.S. 544, 555 (2007)). To test the sufficiency of the complaint in the

face of a Rule 12(b)(6) motion, the court must conduct a three-step inquiry. See

Santiago v. Warminster Twp., 629 F.3d 121, 130-31 (3d Cir. 2010). In the first step,

“the court must ‘tak[e] note of the elements a plaintiff must plead to state a claim.’”

Id. (quoting Ashcroft v. Iqbal, 556 U.S. 662, 675 (2009)). Next, the factual and legal

elements of a claim should be separated; well-pleaded facts must be accepted as

true, while mere legal conclusions may be disregarded. Id.; see also Fowler v.

UPMC Shadyside, 578 F.3d 203, 210-11 (3d Cir. 2009). Once the well-pleaded factual

allegations have been isolated, the court must determine whether they are sufficient

to show a “plausible claim for relief.” Iqbal, 556 U.S. at 679 (citing Twombly, 550

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U.S. at 556); Twombly, 550 U.S. at 555 (requiring plaintiffs to allege facts sufficient

to “raise a right to relief above the speculative level”). A claim “has facial

plausibility when the plaintiff pleads factual content that allows the court to draw

the reasonable inference that the defendant is liable for the misconduct alleged.”

Iqbal, 556 U.S. at 678.

III. Discussion

Section 1983 of Title 42 of the United States Code offers private citizens a

cause of action for violations of federal law by state officials. See 42 U.S.C. § 1983.

The statute provides, in pertinent part, as follows:

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.; see also Gonzaga Univ. v. Doe, 536 U.S. 273, 284-85 (2002); Kneipp v. Tedder, 95

F.3d 1199, 1204 (3d Cir. 1996). To state a claim under § 1983, a plaintiff must allege

“the violation of a right secured by the Constitution and laws of the United States,

and must show that the alleged deprivation was committed by a person acting

under color of state law.” West v. Atkins, 487 U.S. 42, 48 (1988).

Initially, we note that the Perry County Prison is not a “person” subject to

liability under § 1983. It is well-settled that a prison or correctional facility is not a

“person” within the meaning of § 1983. See Fischer v. Cahill, 474 F.2d 991, 992 (3d

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Cir. 1973). Therefore, the Perry County will be dismissed as a defendant in this

action.

Eighth Amendment Claim (Bail Interference)

The Eighth Amendment of the United States Constitution provides that

“[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and

unusual punishments inflicted.” U.S. CONST. amend. VIII. The Eighth

Amendment protects not only against setting excessive bail but also, by necessary

implication, protects against the denial of bail. Sistrunk v. Lyons, 646 F.2d 64, 70

n.23 (3d Cir. 1981). The Eighth Amendment, however, does not create an absolute

right to be free on bail. Id. at 68; see also United States v. Salerno, 481 U.S. 739, 752

(1987) (the Eighth Amendment “says nothing about whether bail shall be available

at all”).

Barrick’s bail claim fails. He does not allege that the bail was excessive or

that defendants were involved in the decision setting the amount of bail. Instead,

Barrick alleges that defendants Barclay and Kline acted to prevent him from

obtaining bail by informing the bondsman that new criminal charges had been filed

against him. However, he does not sufficiently state that any harm was suffered

from this alleged constitutional deprivation because the new criminal charges were

in fact filed. The state court docket reflects that Barrick was originally incarcerated

at the Perry County Prison on criminal charges filed on July 11, 2022. (See Doc. 29-

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1, state court docket, MJ-41304-CR-138-2002).3 While Barrick was incarcerated on

these charges, new criminal charges were filed against him on July 29, 2022, and he

was arraigned on the new charges on August 1, 2022. (See Doc. 29-2, state court

docket, MJ-41304-CR-185-2002; see also Doc. 26-2 at 3). Thus, when the prison

officials purportedly informed the bail bondsman on August 1, 2022, that new

charges had been filed against Barrick, they indeed had already been filed three

days prior. Based on the allegations of the amended complaint, and the

indisputably authentic documents before the court, we cannot agree with Barrick’s

allegation that prison officials “lied” to the bondsman about new criminal charges

filed against him. The motion to dismiss this claim will be granted.

Qualified Immunity

Assuming arguendo that plaintiff’s bail interference claims were to survive,

we would nonetheless conclude that defendants are entitled to qualified immunity.

The doctrine of qualified immunity protects government officials from liability for

civil damages insofar as their conduct does not violate clearly established statutory

or constitutional rights of which a reasonable person would have known.” Pearson

v. Callahan, 555 U.S. 223, 231 (2009) (internal quotation marks omitted). “Qualified

3 We note that the court may consider an exhibit to a defendant’s motion to

dismiss if the plaintiff’s claims are based on that document and if that document is

indisputably authentic. Pension Benefit Guar. Corp. v. White Consol. Indus. Inc.,

998 F.2d 1192, 1196 (3d Cir. 1993) (citations omitted). Although Barrick’s state court

criminal docket is outside of the pleadings, it is a matter of public record and, his

claims are, in part, based on these indisputably authentic documents. Moreover, we

may take judicial notice of state court dockets at the motion to dismiss stage. In re

Congoleum Corp., 426 F.3d 675, 679 (3d Cir. 2005).

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immunity balances two important interests—the need to hold public officials

accountable when they exercise power irresponsibly and the need to shield officials

from harassment, distraction, and liability when they perform their duties

reasonably.” Id. It “provides ample protection to all but the plainly incompetent or

those who knowingly violate the law.” Malley v. Briggs, 475 U.S. 335, 341 (1986).

“Thus, so long as an official reasonably believes that his conduct complies with the

law, qualified immunity will shield that official from liability.” Sharp v. Johnson,

669 F.3d 144, 159 (3d Cir. 2012) (citing Pearson, 555 U.S. at 244).

A qualified immunity determination involves a two-pronged inquiry: (1)

whether a constitutional or federal right has been violated; and (2) whether that

right was “clearly established.” Saucier v. Katz, 533 U.S. 194, 201 (2001), overruled

in part by Pearson, 555 U.S. at 236 (permitting federal courts to exercise discretion

in deciding which of the two Saucier prongs should be addressed first). Defendants

argue that even if the court were to conclude that they violated Barrick’s Eighth

Amendment rights, they are entitled to dismissal on the second Saucier prong.

(Doc. 30 at 14). Upon review of the scant Supreme Court cases and non-persuasive

cases unearthed during our research, we conclude that there is no clearly

established law holding that a prison official violates an inmate’s Eighth

Amendment rights when the official informs a bail bondsman about the existence of

new criminal charges against the inmate. Accordingly, we find that a reasonable

prison official would not know that his conduct, in informing a bail bondsman as to

criminal charges against an inmate, was unlawful. Hence, even if the amended

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complaint states a prima facie case of bail interference, defendants are entitled to

qualified immunity on this Eighth Amendment claim.

IV. Leave to Amend

When a complaint fails to present a prima facie case of liability, district courts

must generally grant leave to amend before dismissing the complaint. See Grayson

v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002); Shane v. Fauver, 213 F.3d

113, 116-17 (3d Cir. 2000). Specifically, the Third Circuit Court of Appeals has

admonished that when a complaint is subject to dismissal for failure to state a claim,

courts should liberally grant leave to amend “unless such an amendment would be

inequitable or futile.” Phillips, 515 F.3d at 245 (citing Alston v. Parker, 363 F.3d 229,

235 (3d Cir. 2004)). Here, the allegations against the defendants are both factually

and legally flawed. The court finds that further amendment would be futile because

we have already granted Barrick leave to amend and he has failed to remedy the

deficiencies in his claims. 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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V. Conclusion

We will grant the motion (Doc. 29) to dismiss by defendants Perry County

Prison, Barclay, Twigg, Kline, Klunk, Fry, and Dicken. An appropriate order shall

issue.

/S/ CHRISTOPHER C. CONNER

Christopher C. Conner

United States District Judge

Middle District of Pennsylvania

Dated: July 19, 2023