Roche v. SCI-Mahanoy RHU

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

JAMES ROCHE, Civil No. 3:24-cv-270

Plaintiff . (Judge Mariani)

v. .

WARDEN MASON, et al. .

Defendants

MEMORANDUM

l. Background

On February 14, 2024, Plaintiff James Roche (“Roche”), at all relevant times a state

inmate incarcerated at the State Correctional Institution at Mahanoy (“SCI-Mahanoy’),

initiated this action pursuant to 42 U.S.C. § 1983. (Doc. 1). The matter is proceeding via an

amended complaint. (Doc. 4).

Named as Defendants are Superintendent Mason, Captain Taylor, Lieutenant

Rebarchak, and John Doe correctional officers. Roche alleges that Defendants violated his

rights for asking a non-party correctional officer whether he was related to someone Roche

knew. (Doc. 4). Before the Court is a motion to dismiss pursuant to Federal Rule of Civil

Procedure 12(b)(6) filed on behalf of Defendants Mason, Taylor, and Rebarchak. (Doc. 12).

The motion is ripe for disposition and, for the reasons that follow, the Court will grant the

motion and dismiss the amended complaint with leave to amend certain claims as

discussed below. !

Also before the Court is Roche’s proposed one-page amendment wherein he

includes the addition of Defendants Rennenger and Kabilko. (Doc. 22). In the interests of

judicial economy, the viability of the allegations against these individuals will be considered

in accordance with 28 U.S.C. § 1915.

ll. Legal Standards

A. — Rule 12(b)(6)

A complaint must be dismissed under FED. R. Civ. P. 12(b)(6), if it does not allege

“enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 570 (2007). The plaintiff must aver “factual content that allows the

court to draw the reasonable inference that the defendant is liable for the misconduct

alleged.” Ashcroft v. Iqbal, 556 U.S. 662 (2009).

“Though a complaint ‘does not need detailed factual allegations,... formulaic

recitation of the elements of a cause of action will not do.... De/Rio-Mocci v. Connolly Prop.

Inc., 672 F.3d 241, 245 (3d Cir. 2012) (citing Twombly, 550 U.S. at 555). In other words,

“[flactual allegations must be enough to raise a right to relief above the speculative level.”

Covington v. Int'l Ass'n of Approved Basketball Officials, 710 F.3d 114, 118 (3d Cir. 2013)

1 Roche's brief in opposition to Defendants’ motion to dismiss contains facts that are not

expressly Set forth in the amended complaint. (See Doc. 23). 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) (“[l]t is axiomatic that the complaint may not

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

(internal citations and quotation marks omitted). A court “take[s] as true all the factual

allegations in the Complaint and the reasonable inferences that can be drawn from those

facts, but ... disregard{s] legal conclusions and threadbare recitals of the elements of a

cause of action, supported by mere conclusory statements.” Ethypharm S.A. France v.

Abbott Laboratories, 707 F.3d 223, 231, n.14 (3d Cir. 2013) (internal citations and quotation

marks omitted).

Twombly and /qbal require [a district court] to take the following three steps to

determine the sufficiency of a complaint: 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.

Connelly v. Steel Valley Sch. Dist., 706 F.3d 209, 212 (3d Cir. 2013).

“Where the well-pleaded facts do not permit the court to infer more than the mere

possibility of misconduct, the complaint has alleged - but it has not show{n] -that the

pleader is entitled to relief.” /qbal, 556 U.S. at 679 (internal citations and quotation marks

omitted). This “plausibility” determination will be a “context-specific task that requires the

reviewing court to draw on its judicial experience and common sense.” /d.

However, even “if a complaint is subject to Rule 12(b)(6) dismissal, a district court

must permit a curative amendment unless such an amendment would be inequitable or

futile.” Phillips v. Cnty. of Allegheny, 515 F.3d 224, 245 (3d Cir. 2008). “[E]ven when

plaintiff does not seek leave to amend his complaint after a defendant moves to dismiss it,

unless the district court finds that amendment would be inequitable or futile, the court must

inform the plaintiff that he or she has leave to amend the complaint within a set period of

time. Id.

B. 42U.S.C. § 1983

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).

C. 28U.S.C. § 1915

A federal court may properly dismiss an action sua sponte under the screening

provisions of 28 U.S.C. § 1915(e)(2)(B) and § 1915A\(b) if “the action is frivolous or

malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief

from a defendant who is immune from such relief.” Ball v. Famiglio, 726 F.3d 448, 452 (3d

Cir. 2013). Under 28 U.S.C. § 1915(e)(2)(B)(i) and § 1915A(b)(1), a court may dismiss a

complaint as frivolous if it is “based on an indisputably meritless legal theory” or a “clearly

baseless” or “fantastic or delusional” factual scenario. Neitzke v. Williams, 490 U.S. 319,

327-28 (1989); Wilson v. Rackmill, 878 F.2d 772, 774 (3d Cir. 1989).

As with the Rule 12(b)(6) standard set forth above, the Court must accept all factual

allegations in a complaint as true and take them in the light most favorable to a pro se

plaintiff. Phillips, 515 F.3d at 229. Because Roche proceeds pro se, his pleading is liberally

construed and his complaint, “however inartfully pleaded, must be held to less stringent

standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94

(2007) (citations omitted).

lll. Allegations of the Amended Complaint

In his amended complaint, Roche alleges that he asked a correctional officer if he

was related to someone that Roche knew. (Doc. 4, p. 4). Following this conversation,

Roche alleges that he was denied showers and missed meals. (/d.). He requested to

speak with a sergeant or lieutenant and complained to staff about his placement in a

lockdown facility of the C-Block in the Restricted Housing Unit (“RHU”). (/d. at pp. 4-5). In

response, a C-Block worker allegedly gave writing materials to Roche so he may submit a

written complaint to Defendant Mason. (/d. at p. 4). Roche submitted a form to Defendant

Mason wherein he complained about the purported abusive behaviors of the John Doe

correctional officers and the denial of paperwork, including grievance forms. (ld.).

Defendant Mason allegedly responded to the inquiry and advised that Defendant Taylor

would investigate his complaints. (/d.). Roche maintains that he never spoke to Defendant

Taylor or received a written response from Defendant Taylor. (/d. at p. 5).

Roche asserts that the John Doe correctional officers on the C-Block of the RHU

continued their actions and treated him different than other inmates on the unit. (/d.). He

alleges that, in March of 2023, the John Doe correctional officers on C-Block of the RHU

used the public address system to harass Roche by insulting him and telling him to use his

mat to block his cell door. (/d.). Roche also alleges that the John Doe correctional officers

provoked him with loud sounds at night. (/d. at pp. 5-6). Eventually, Roche “did as they

asked” and blocked his cell door with a mat. (/d. at pp. 6-7). In response to this action,

Roche alleges that unidentified officers “came with gas[ Jmasks and sprayed my cell.” (Id.

at p. 6). The unidentified officers then escorted Roche to the nurses’ station and his eyes

were washed out, but he was not allowed to shower. (/d.). Roche was then transferred to a

cell on the A-Block on the RHU. (/d.). He alleges that unidentified officers stripped his

clothes, while in handcuffs, and “put him on the ground.” (/d.). A John Doe correctional

officer put his knee on Roche’s neck while other unidentified correctional officers videotaped

the interaction with a camcorder. (/d.). Roche asserts that Defendant Rebarchak, the

ranking officer, was present on the A-Block during this incident. (/d.). He further asserts

that he was denied basic necessities while on the A-Block. (I/d.).

At one point in time, Roche was moved to the D-Block of the RHU and the John Doe

correctional officers continued their verbal harassment and denial of basic needs. (/d. at p.

7). Roche again blocked his cell door with a mat and he “was sprayed again.” (/d.).

Unidentified officers escorted Roche to the nurses’ station and his eyes were washed out,

but he was not permitted to shower. (/d.). Roche remained on the D-Block of the RHU until

April 4, 2023; at which time he was transferred to the State Correctional Institution at

Rockview. (Id.).

As a result of these incidents, Roche alleges that he suffered mental distress, and he

views correctional officers in a different light. (/d. at p. 8). He seeks monetary relief and

demands that the Court bring criminal charges against the John Doe individuals. (/d.).

IV. Discussion

A. — Claim Pursuant to the Federal Tort Claims Act (“FTCA”)

It is well-settled that the United States “is the only proper defendant in a case

brought under the FTCA.” CNA v. United States, 535 F. 3d 132, 138 n.2 (3d Cir. 2008)

(‘The Government is the only proper defendant in a case brought under the FTCA.”);

Feaster v. Federal Bureau of Prisons, 366 F. App’x 322, 323 (3d Cir. 2010) (“The only

proper defendant in an FTCA suit is the United States itself.”); Dambach v. United States,

211 F. App’x 105, 108 (3d Cir. 2006) (noting that “the only party potentially answerable for

any injury [under the FTCA] is the United States.”). Roche thus cannot bring an FTCA claim

against the individual state employee Defendants. The Court will dismiss the FTCA claim

with prejudice against these individual Defendants.

B. Defendants Mason and Taylor

Individual liability can be imposed under Section 1983 only if the state actor played

an “affirmative part’ in the alleged misconduct and “cannot be predicated solely on the

operation of respondeat superior.” Evancho v. Fisher, 423 F.3d 347, 353 (3d Cir. 2005)

(quoting Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1998)). “A defendant in a civil

rights action must have personal involvement in the alleged wrongs.... Personal involvement

can be shown through allegations of personal direction or of actual knowledge and

acquiescence.” Rode, 845 F.2d at 1207-08; see also Rizzo v. Goode, 423 U.S. 362 (1976);

Atkinson v. Taylor, 316 F.3d 257 (3d Cir. 2003). Such allegations, however, must be made

with appropriate particularity in that a complaint must allege the particulars of “conduct,

time, place, and persons responsible.” Evancho, 423 F.3d at 354; Rode, 845 F.2d at 1207-

08. Alleging a mere hypothesis that an individual defendant had personal knowledge or

involvement in depriving the plaintiff of his rights is insufficient to establish personal

involvement. Rode, 845 F.2d at 1208. As such, liability cannot be imposed on Defendants

Mason and Taylor based solely on their positions and duties as Superintendent and

Captain, respectively.

Nor can Defendants Mason and Taylor be held liable based on their roles in

considering Roche’s complaint or grievance. “[A]lthough prisoners have a constitutional

right to seek redress of grievances as part of their right of access to courts, this right is not

compromised by [prison officials’ failure] to address these grievances.” Booth v. King, 346

F. Supp. 2d 751, 761 (E.D. Pa. 2004). “Access to prison grievance procedures is not a

constitutionally-mandated right, and allegations of improprieties in the handling of

grievances do not state a cognizable claim under [Section] 1983.” Glenn v. De/Balso, 599

F. App’x 457, 459 (3d Cir. 2015); see Booth, 346 F. Supp. 2d at 761 (finding that

“[p]risoners are not constitutionally entitled to a grievance procedure and the state creation

of such a procedure does not create a liberty interest requiring procedural protections under

the Fourteenth Amendment.”); Burnside v. Moser, 138 F. App’x 414, 416 (3d Cir. 2005)

(affirming that “[i]nmates do not have a constitutionally protected right to the prison

grievance process.”).

Consequently, the actions of Mason and Taylor in responding to Roche’s complaint

and grievance, or in concurring in the process, are insufficient to establish personal

involvement necessary to state a claim. See Simonton v. Tennis, 437 F. App'x 60, 62 (3d

Cir. 2011) (stating “[A] prison official's secondary review of an inmate’s grievance or appeal

is not sufficient to demonstrate the personal involvement required to establish the

deprivation of a constitutional right.”); Brooks v. Beard, 167 F. App’x 923, 925 (3d Cir. 2006)

(holding that a state prisoner’s allegation that prison officials and administrators responded

inappropriately, or failed to respond to later-filed grievances about his medical treatment, did

not establish that the officials and administrators were involved in the underlying allegedly

unconstitutional conduct). The claims against Defendants Mason and Taylor will be

dismissed with prejudice based on lack of personal involvement.

C. Defendant Rebarchak

Roche also attempts to state a claim against Defendant Rebarchak. Roche alleges

that Defendant Rebarchak, “the ranking officer’, was present during the strip search and

during the videotape of the incident. (Doc. 4, p. 6). The amended complaint does not

allege that Defendant Rebarchak touched Roche, directed the officers to perform the strip

search, directed any comments at him, did anything to him after the strip search, or was

otherwise responsible for any alleged injury. (/d.). Roche simply states that Defendant

Rebarchak was the only individual with a visible nametag. (/d.).

Without specific allegations that Defendant Rebarchak personally contributed to any

alleged harm, presently, there is no basis for Roche to proceed against him. Because the

amended complaint is devoid of factual allegations from which the Court can plausibly infer

that Defendant Rebarchak was personally involved in an alleged constitutional violation, the

motion to dismiss on this ground will be granted. See Atkinson, 316 F.3d at 271; Rode, 845

F.2d at 1207-08 (when a plaintiff merely hypothesizes that an individual defendant may

have had knowledge of or personal involvement in the deprivation of his rights, individual

liability will not follow). However, the dismissal will be without prejudice and with leave to

amend to adequately state a claim.

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D. | Defendants Rennenger and Kabilko

Roche seeks to impose liability on Defendants Rennenger and Kabilko based on

their verbal harassment. (Doc. 22). He alleges that Defendant Rennenger “said to [him]

[that] [he] looked like Nicki Manajj,]’ and that Defendant Kabilko “said to [him] [that] [he] was

a faggot and a child rapist.” (/d. at p. 1). There is no assertion that any of those purported

statements were accompanied by any physical abuse or that there was any instance where

officers Rennenger and Kabilko escalated the harassment beyond mere words. (See id.).

The use of words generally cannot constitute an assault actionable under § 1983.

See Dunbar v. Barone, 487 F. App’x 721, 723 (3d Cir. 2012) (“[VJerbal threats or taunts,

without more, are not sufficient to constitute a violation of the Eighth Amendment.”). Roche

cannot state a claim that his constitutional rights were violated based upon allegations of

only verbal harassment. No matter how offensive the language that officers Rennenger and

Kabilko allegedly used towards Roche, that alone does not give rise to a constitutional

claim. See Aleem-X v. Westcott, 347 F. App’x 731 (3d Cir. 2009) (“Verbal abuse of a

prisoner, even of the lewd variety [ ], is not actionable under § 1983.”).

There is no indication that any of the verbal harassment allegedly voiced against

Roche by officers Rennenger and Kabilko was accompanied by a reinforcing act. More

importantly, it is not alleged that the alleged verbal abuse was accompanied by any

physically intrusive behavior. Given the circumstances described by Roche, the purported

verbal remarks, although potentially offensive, were not of such magnitude to shock the

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conscience and thus, did not rise to the level of a constitutional violation. As such, the

amendment against Defendants Rennenger and Kabilko will be dismissed pursuant to 28

U.S.C. § 1915(e)(2)(B)(ii), but the Court will grant Roche leave to amend to adequately state

a cognizable Eighth Amendment claim for relief against these two individuals.

V. Federal Rule of Civil Procedure 4

The John Doe Defendants have not been identified and have not been served

process. Pursuant to Federal Rule of Civil Procedure 4(m), a plaintiff has 90 days from the

date he filed his complaint to serve the complaint on the defendants. FED. R. Civ. P. 4(m).

Upon a showing of good cause for the failure to serve, the Court must extend the time for

service; the Court can, at its discretion, extend the time for service even if plaintiff has not

shown good cause for the delay. Feb. R. Civ. P. 4(m). The factors a Court should consider

in evaluating whether good cause exists are: (1) the reasonableness of the plaintiff's efforts

to effect service; (2) prejudice to the defendant because of untimely service; (3) whether the

plaintiff has moved for an enlargement of time; and (4) whether the statute of limitations will

bar the plaintiff's claims if the action is dismissed. See MC/ Telecomms. Corp. v.

Teleconcepts, Inc., 71 F.3d 1086, 1097-98 (3d Cir. 1995).

The John Doe Defendants were named in the amended complaint that was filed on

March 13, 2024 and, to date, have not been identified or served in this case. Under the

present circumstances, the Court will grant Roche leave to amend his complaint to both

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identify the John Doe individuals in an attempt to have them served and to state a plausible

claim for relief against them.

Vl. 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)).

The defects in Roche’s pleading are substantial. With respect to the FTCA claim

and the claims against Defendants Mason and Taylor, the Court finds that the claims lack

an arguable basis in law and fact and any attempt to amend would be futile. Therefore, the

FTCA claim and the claims against Defendants Mason and Taylor will be dismissed with

prejudice.

However, the Court finds that permitting amendment with respect to Defendants

Rebarchak, Rennenger, and Kabilko, and the John Doe individuals is appropriate as it

appears that Roche may potentially cure the deficiencies that form the bases for dismissal

of these claims. The following pleading deficiencies are largely factual in nature and thus

conceivably could be cured by an amended pleading. Roche alleges that unidentified

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officers “came with gas[ ]Jmasks and sprayed my cell.” (Doc. 4, p. 6). He then asserts that

he was escorted to the nurses’ station and his eyes were washed out, but he was not

allowed to shower. (/d.). Roche alleges that he was transferred to the A-Block where

unidentified officers stripped his clothes, while in handcuffs, and “put him on the ground.”

(Id.). A John Doe correctional officer allegedly put his knee on Roche's neck while other

unidentified correctional officers videotaped the interaction with a camcorder. (/d.). Roche

asserts that Defendant Rebarchak was the ranking officer and was present during this

incident. (Id.). The amended complaint contains no further allegations against Defendant

Rebarchak. On another unspecified date, Roche alleges that he was “sprayed again”, he

was escorted to the nurses’ station and his eyes were washed out, but he was again denied

a shower. (/d. at p. 7). During the timeframe of both incidents, Roche alleges that he was

denied basic necessities. (/d. at pp. 6-7).

First, it is far from clear that Roche has named the proper Defendants, or any

Defendants at all. Roche does not indicate who took the actions against him, when they

took place, where they took place, the context in which they occurred, why he was sprayed

on at least two occasions, and why he was placed on the ground while another correctional

officer put his knee on Roche's neck. In addition, the amended complaint fails to allege any

conduct by any named Defendant that led to the violation of his constitutional rights. With

respect to the claims against Defendants Rennenger and Kabilko, Roche does not allege

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that their alleged verbal harassment was accompanied by any physical behavior, as

required to state a plausible claim. (Doc. 22).

Given Roche's apparent reference to retaliation, excessive use of force, and cruel

and unusual punishment, the Court will, out of an abundance of caution, provide him an

opportunity to file a proposed amended complaint. See Chestnut v. Finck, 722 F. App’x

115, 118 (3d Cir. 2018) (“we are mindful to give a liberal construction to pro se pleadings,

particularly in civil rights cases where plaintiffs should generally be afforded leave to

amend’) (citations omitted). Roche must identify the individual officials responsible for the

misconduct and explain how each individual was involved in the alleged violations of his civil

rights. His description should include references to relevant dates, times, and locations,

and should explain to the Court how each Defendant's behavior, action, or inaction

contributed to the alleged violation. Roche should also explain what he is seeking by way of

relief.

Vil. Conclusion

For the reasons outlined above, the motion (Doc. 12) to dismiss filed on behalf of

Defendants Mason, Taylor, and Rebarchak will be granted. Specifically, the motion will be

granted with prejudice and without leave to amend as to the FTCA claim and the claims

against Defendants Mason and Taylor. The motion will be granted without prejudice and

with leave to amend as to the claims against Defendant Rebarchak and the John Doe

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individuals. Finally, the second amended complaint against Defendants Rennenger and

Kabilko will be dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii), but with leave to amend.

Consistent with the above discussion, Roche will be afforded the opportunity to file a

proposed amended complaint that complies with the foregoing instructions on or before

October 16, 2024.

A separate Order shall issue.

Z \ /

un] MAb biter

Robert D. Mariani

United States District Judge

Dated: October 12004

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