KIRK v. PENNSYLVANIA DEPARTMENT OF CORRECTIONS

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

ERIE DIVISION

DEANTHONY KIRK, )

)

Plaintiff ) 1:22-CV-00261-RAL

)

vs. ) RICHARD A. LANZILLO

) Chief United States Magistrate Judge

PENNSYLVANIA DEPARTMENT OF )

CORRECTIONS, LONNIE OLIVER, ) MEMORANDUM OPINION ON

PATTY THOMPSON, EARL JONES, ) DEFENDANTS’ MOTION TO DISMISS

TAMMY TURNER, MICHELE THARP, )

OFFICER HASS, OFFICER BROWN, ) ECF NO. 23

OFFICER SUNBERG, SERGEANT

MALUK, LIEUTENANT BEDNARDO, )

JESSAMINE HEALTHCARE, INC., )

JESSAMINIE HEALTHCARE, INC., )

CORRECT CARE SOLUTIONS, )

LLC/WELLPATH, LLC, JESSAMINE )

NURSE, (CAUCASIAN BRUNETTE), )

)

Defendants )

)

I. Introduction and Procedural History

Plaintiff Deanthony Kirk, an inmate incarcerated at the State Correctional Institution at

Albion (SCI-Albion), commenced this action in the Court of Common Pleas of Erie County

against the Pennsylvania Department of Corrections (“DOC”), several DOC employees

(collectively, “DOC Defendants”),! Correct Care Solutions, LLC/Wellpath, LLC, Jessamine

Healthcare, Inc. (“Jessamine”), and an unidentified Jessamine-employed nurse (collectively,

“Medical Defendants”). ECF No 1-1. The Complaint asserted an Eighth Amendment claim

against all Defendants and negligence claims under Pennsylvania law against five individual

' The DOC employees are Lonnie Oliver, Patty Thompson, Earl Jones, Tammy Turner, Michele Tharp, Officer

Hass, Officer Brown, Officer Sunberg, Sergeant Maluk, and Lieutenant Bednardo. ECF No. 1-1.

DOC Defendants and the Medical Defendants. The DOC Defendants removed Complaint to this

Court. Jd. Thereafter, Kirk voluntarily withdrew his state law negligence claim against all

Defendants and all claims against Medical Defendants, pursuant to Fed. R. Civ. P.

41(a)(1)(A)G). ECF Nos. 15, 16.

Kirk then filed an Amended Complaint against the DOC and SCI-Albion Sergeant

Maluk, Lieutenant Bednardo, and Corrections Officers Haas, Brown, and Sunberg. His

Amended Complaint omitted the allegations and claims against the other DOC Defendants.? The

Amended Complaint includes two counts: Count I asserts “failure to protect/failure to keep

safe/cruel and unusual punishment” claims under the Fourth, Eighth, and Fourteenth

Amendments, and Count II asserts a “Monell” claim. Both counts seek monetary damages

against all remaining Defendants in their individual and official capacities.

The Defendants have moved to dismiss the Amended Complaint pursuant to Fed. R. Civ.

P. 12(b)(6). ECF No. 23. Kirk has filed a brief in opposition to the motion to dismiss in which

he defends the legal sufficiency of his Eighth Amendment claims but withdraws “without

prejudice” all claims against Officer Sunberg, Lieutenant Bednardo, and the DOC, all claims

asserted against Defendants in their official capacities, and Count 11.3 ECF No. 27. Accepting

Kirk’s “withdrawal” of claims as effective, this leaves pending his “failure to protect/failure to

2 Consequently, the Clerk of Court terminated DOC Defendants Tharp, Thompson, Tumer, Jones, and Oliver from

this action.

3 The Court will construe Kirk’s brief liberally as a notice of voluntary dismissal of certain claims pursuant to Fed.

R. Civ. P 41(a). So construed, Kirk’s dismissal of a// claims against Sunberg, Bednardo, and the DOC is

procedurally permissible under Rule 41(a). But Kirk’s voluntary dismissal of fewer than all claims against certain

Defendants under Rule 41(a) is not. The proper procedure for the latter is the filing of an amended complaint. See

Chan v. Cnty. of Lancaster, 2013 WL 2412168, at *16 (E.D. Pa. June 4, 2013) (“In an action with multiple

defendants, voluntary dismissal of all claims against a single defendant is permitted under Rule 41(a); however,

voluntary dismissal of some, but not all claims, against a single defendant is not permitted under Rule 41(a); Rosario

v. Strawn, 2020 WL 5810009, at *3-4 (W.D. Pa. Sept. 30, 2020) (following Chan); Stache v. Mid Mon Valley

Transit Auth., 2020 WL 1477199, at *2 (W.D. Pa. Mar. 26, 2020) (same). Given the Court’s ultimate disposition of

Defendants’ motion, however, Kirk’s procedural misstep is of no moment.

keep safe/cruel and unusual punishment” Eighth Amendment claims against Defendants Hass,

Brown, and Maluk in their individual capacities.

Il. Factual Allegations

Fox purposes of the pending motion, the factual allegations of Kirk’s Amended

Complaint are accepted as true. On July 22, 2021, Officer Haas was escorting Kirk “back to his

cell with his hands cuffed behind his back,” when, as they passed through a metal detector, Kirk

suddenly hit on the right side of his face” and then “the left.” ECF No. 19, 4 13.

Immediately after, Kirk “saw Defendant, Brown, grab an inmate directly behind him, and push

him against the wall.” Jd., 414. Kirk “sustained serious physical injuries including but not

limited to, a cut on his face directly under his right eye, decreased vision, uncontrolled eye

movements, and intense facial pain.” Jd, J 15.

Kirk was in solitary confinement at this time, and Hass was taking him back to his cell

after outside recreation. Kirk asserts that “it is standard procedure for every inmate in solitary

confinement to be escorted by a Correctional Officer with a Sergeant overseeing the transfer.”

Id.,§ 16. According to Kirk, Sergeant Maluk should have overseen his transfer, but he did not.

Nor did any other sergeant.

Kirk still suffers from the injuries he sustained during the July 22, 2021 assault. He also

“has extreme anxiety about an incident like this happening again and struggles with sleeping.”

Id., § 24.

IH. Standard of Review

A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the legal

sufficiency of the complaint. See Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993). In

deciding a Rule 12(b)(6) motion to dismiss, the court must accept as true all well-pled factual

allegations in the complaint and views them in a light most favorable to the plaintiff. See U.S.

Express Lines Ltd. v. Higgins, 281 F.3d 383, 388 (3d Cir. 2002). The “court{] generally

consider[s] only the allegations in the complaint, exhibits attached to the complaint, matters of

public record, and documents that form the basis of a claim” when considering the motion to

dismiss. Lum v. Bank of Am., 361 F.3d 217, 222 n.3 (3d Cir. 2004) (citing Jn re Burlington Coat

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

In making its determination under Rule 12(b)(6), the court is not opining on whether the

plaintiff is likely to prevail on the merits; rather, the plaintiff must only present factual

allegations sufficient “to raise a right to relief above the speculative level.” Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 556 (2007) (citing 5 C. Wright & A. Miller, Federal Practice and

Procedure § 1216, pp. 235-36 (3d ed. 2004)). See also Igbal, 556 U.S. 662. Furthermore, a

complaint should only be dismissed pursuant to Rule 12(b)(6) if it fails to allege “enough facts to

state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570 (rejecting the

traditional Rule 12(b)(6) standard established in Conley v. Gibson, 355 U.S. 41, 78 (1957)).

While a complaint does not need detailed factual allegations to survive a motion to

dismiss, a complaint must provide more than labels and conclusions. See Twombly, 550 U.S. at

555. A “formulaic recitation of the elements of a cause of action will not do.” Jd. (citing

Papasan v. Allain, 478 U.S. 265, 286 (1986)). Moreover, a court need not accept inferences

drawn by a plaintiff if they are unsupported by the facts as explained in the complaint. See

California Pub. Emp. Ret. Sys. v. The Chubb Corp., 394 F.3d 126, 143 (3d Cir. 2004) (citing

Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997)). Nor must the court accept

legal conclusions disguised as factual allegations. See Twombly, 550 U.S. at 555; McTernan v.

City of York, Pennsylvania, 577 F.3d 521, 531 (3d Cir. 2009) (“The tenet that a court must accept

as true all of the allegations contained in a complaint is inapplicable to legal conclusions.”).

Expounding on the Twombly/Iqbal line of cases, the Third Circuit has articulated the following

three-step approach:

First, the court must ‘tak[e] 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.’

Burtch v. Milberg Factors, Inc., 662 F.3d 212, 221 (3d Cir. 2011) (quoting Santiago v.

Warminster Twp., 629 F.3d 121, 130 (3d Cir. 2010)). This determination is “a context-specific

task that requires the reviewing court to draw on its judicial experience and common sense.”

Iqbal, 556 U.S. at 679.

IV. Discussion

Kirk claims that the Defendants violated his Eighth Amendment rights by “fail[ing] to

protect [him] from being assaulted by a separate inmate.” ECF No. 19. Because the facts

alleged in the Amended Complaint do not support essential elements of a failure to protect claim

or a conditions of confinement claim or any Defendant’s personal involvement in actionable

conduct, the Court will grant the Defendants’ motion to dismiss.

The Eighth Amendment 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). To state a

viable failure to protect claim, the inmate must allege facts that support plausible inferences that

“(1) he was incarcerated under conditions posing a substantial risk of serious harm; (2) the

official was deliberately indifferent to that substantial risk to [the inmate’s] health and safety,

and (3) the official’s deliberate indifference caused [the inmate] harm.” Manuel v. Capozza,

2022 WL 4001049, at *5 (W.D. Pa. July 14, 2022), report and recommendation adopted, 2022

WL 3998446 (W.D. Pa. Sept. 1, 2022) (quoting Ramey v. Marsh, 2022 WL 363854, at *3 (M.D.

Pa. Feb. 7, 2022) (citing 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))). Deliberate indifference manifests □

where the official “knows and disregards an excessive risk to inmate health and safety; the

official must both be aware of facts from which the inference could be drawn that a substantial

risk of serious harm exists, and he must also draw the inference.” Hill v. Patrick, 2008 WL

1752692, at *2 (W.D. Pa. 2008) (quoting Beers-Captiol v. Whetzel, 256 F.3d 120, 133 Gd Cir.

2001)). Additionally, “[a] correctional officer’s failure to intervene when a prisoner is being

physically assaulted by another prison official can be the basis of liability for an Eighth

Amendment violation ‘if the corrections officer had a reasonable opportunity to intervene and

simply refused to do so.’” Millbrook v. United States, 714 Fed. Appx. 109, 114 (3d Cir. 2017)

(citing Smith v. Mensinger, 293 F.3d 641, 650-51 (3d Cir. 2002)).

To prevail on a claim pursuant to 42 U.S.C. § 1983, a plaintiff must prove that a

defendant, acting under color of state law, deprived the plaintiff of a right secured by the

Constitution or laws of the United States. Mark v. Borough of Hatboro, 51 F.3d 1137, 1141 (3d

Cir. 1995); Est. of Smith v. Marasco, 430 F.3d 140, 151 Gd Cir. 2005); 42 U.S.C. § 1983. Itis

axiomatic that liability under § 1983 requires a defendant’s “personal involvement” in the

deprivation of a constitutional right. See Gould v. Wetzel, 2013 WL 5697866, at *2 (3d Cir. Oct.

21, 2013). This means that each defendant must have played an “affirmative part” in the

complained-of misconduct. Jgbal, 556 U.S. at 677 (“In a § 1983 suit ... [a]bsent vicarious

liability, each Government official, his or her title notwithstanding, is only liable for his or her

own misconduct.”); Oliver v. Beard, 358 Fed. Appx. 297, 300 (3d Cir. 2009). In the absence of

specific allegations that a defendant played a role in depriving the plaintiff of a constitutional

right, dismissal is appropriate. See, e.g., Mearin v. Swartz, 951 F. Supp. 2d 776, 781-82 (W.D.

Pa. 2013) (dismissing claims pursuant to Rule 12(b)(6) because the plaintiffs had failed to set

forth sufficient facts to establish that certain defendants had played an affirmative part in the

alleged Eighth Amendment violation).

“Allegations of participation or actual knowledge and acquiescence, however, must be

made with appropriate particularity” in that a complaint must identify the person responsible and

allege his or her conduct upon which the claims is based. Rode v. Dellarciprete, 845 F.2d 1195,

1207-08 (3d Cir. 1988). See also Evancho vy. Fisher, 423 F.3d 347, 354 (3d Cir. 2005). Indeed,

“(when a plaintiff merely hypothesizes that an individual defendant may have had knowledge of

or personal involvement in the deprivation of his or her rights, individual liability will not

follow.” Rager v. Mataloni, 2016 WL 4679010, at *3 (MD. Pa. Sept. 7, 2016) (citing Atkinson

v. Taylor, 316 F.3d 257, 271 (3d Cir. 2003)). In the absence of specific allegations that a

defendant played a role in depriving the plaintiff of a constitutional right, dismissal is

appropriate. See, e.g., Mearin v. Swartz, 951 F. Supp. 2d 776, 781-82 (W.D. Pa. 2013)

(dismissing claims pursuant to Rule 12(b)(6) because the plaintiffs had failed to set forth

sufficient facts to establish that certain defendants had played an affirmative part in the alleged

Eighth Amendment violation).

Kirk argues that Haas and Brown failed to protect him from an unidentified inmate’s

attack despite their presence in the immediate area at the time of the assault. Kirk bases his

claim against Maluk upon his supervisory responsibilities and his absence from the scene of the

attack. Despite the presence of Haas and Brown at the scene, the facts alleged do not support a

plausible inference that any Defendant knew or should have known that the assault was

imminent or that any Defendant had a reasonable opportunity to intervene to prevent the assault.

Indeed, the facts alleged belie such inferences.

Haus’ only alleged involvement in the incident was his escorting of Kirk through the

metal detector. Brown’s only alleged involvement was his interaction with an inmate

immediately following the assault. Maluk is faulted for failing to oversee Kirk’s transport.

None is alleged to have knowledge of facts that would have led a reasonable person to expect the

assault or to have had any reasonable opportunity to intervene to protect Kirk from the first or

second slap by the unnamed inmate. To the contrary, the facts alleged depict a sudden and

unexpected attack and Brown’s immediate intervention after the other inmate struck Kirk.

Kirk’s allegations acknowledge that Maluk was not present at the time of the assault and, thus,

was neither able to anticipate nor intervene in the assault. Maluk’s alleged failure to supervise

his transfer as required by a DOC policy does not support a failure to protect claim absent

allegations of fact that he had knowledge that the other inmate posed a particular threat to Kirk.

A DOC official’s failure to follow policy, standing alone, does not support an independent cause

of action. ‘See Williams v. Overmyer, 2020 WL 746844, at *1 (W.D. Pa. Feb. 14, 2020). And

Kirk cannot base Maluk’s liability under § 1983 on a theory of respondeat superior. See

Mulholland v. Gov’t Cnty. of Berks, Pa., 706 F.3d 227, 239 (3d Cir. 2017).

Because the Amended Complaint fails to allege facts to support that any Defendant

played an affirmative part in the assault against Kirk, knew or should have known Kirk faced an

imminent risk of attack, or had a reasonable opportunity to intervene in the assault, it fails to

state an Eighth Amendment failure to protect claim.

Kirk also appears to assert a conditions of confinement claim based on the unnamed

inmate’s alleged assault upon him. This claim fails for similar reasons. The Eighth

Amendment’s prohibition of cruel and unusual punishment imposes constitutional limitations on

a prisoner’s conditions of confinement. See Rhondes v. Chapman, 452 U.S. 337 (1981); Graham

v. Connor, 490 U.S. 386 (1989); Wilson V. Seiter, 501 U.S. 294 (1991). Specifically, “prison

officials must ensure that inmates receive adequate food, clothing, shelter, and medical care, and

must ‘take reasonable measures to guarantee the safety of the inmates.’” Farmer v. Brennan,

511 U.S. 825, 832 (1994) (citations omitted). Indeed, “prison officials have a duty ... to protect

prisoners from violence at the hands of other prisoners.’” Jd. at 833 (quoting Corfes—Quinones v.

Jimenez—Nettleship, 842 F.2d 556, 558 (1" Cir. 1988)). To state a viable conditions of

confinement claim, the plaintiff must allege facts to show: (1) a deprivation that is “objectively,

sufficiently serious”; and (2) that the prison official “had a sufficiently culpable state of mind.”

Beers-Capitol, 256 F.3d at 125 (quoting Farmer, 511 U.S. at 834) (cleaned up).

Kirk’s failure to allege facts to support that any Defendant acted with deliberate

indifference to his safety also negates his conditions of confinement claim. See Farmer, 511

U.S. at 844 (“prison officials who lacked knowledge of a risk cannot be said to have inflicted

punishment”). Furthermore, the assault as depicted does not amount to “the unnecessary and

wanton infliction of pain” contemplated by the Eighth Amendment. See id., at 834 (quoting

Wilson, 501 U.S. at 297). Nor do the allegations describe conduct that could be construed as

such. Accordingly, Kirk’s conditions of confinement claim also fails against all Defendants.*

4 Given the Court’s dismissal of both counts of the Amended Complaint, it need not address Defendants’ challenge to

Kirk’s request for monetary relief against them in their official capacities.

V. Further Amendment would be futile.

The Third Circuit has instructed that if a civil rights complaint is vulnerable to dismissal

for failure to state a claim, the Court should 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 Court may deny leave to amend where there is “undue delay, bad faith{,] or dilatory

motive on the part of the movant, repeated failure to cure deficiencies by amendments previously

allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, [or]

futility of the amendment.” Foman v. Davis, 371 U.S. 178, 182 (1962). And though “the grant

or denial of an opportunity to amend is within the discretion of the District Court,” it may not

“outright refus[e] to grant the leave without any justifying reason appearing for the denial.” Jd.

In this case, Kirk’s allegations demonstrate that further amendment would be futile. He

has already amended his pleading in response to challenges to the legal sufficiency of his claims.

The factual allegations of his Amended Complaint demonstrate that the assault by the unnamed

inmate was sudden and provided Defendants with no reasonable opportunity to intervene. No

facts are alleged in Kirk’s original Complaint or his Amended Complaint to indicate that

Defendants had any reason to anticipate the attack. Thus, no amendment can save his Eighth

Amendment failure to protect or intervene claim. Amendment to Kirk’s conditions of

confinement claim is also futile for the same reasons. Accordingly, these claims will be

dismissed with prejudice.

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VI. — Conclusion

For the foregoing reasons, Defendants’ motion to dismiss (ECF No. 23) is GRANTED.

DATED this 12" day of June, 2023.

BY THE COURT:

Ke A. LANZILLO

□ CHIEF UNITED STATES MAGISTRATE JUDGE

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