Rosario

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

ISMAEL FELIX ROSARIO, □ No. 3:24cv2255

Plaintiff (Judge Munley)

v. .

SUPERINTENDENT SALAMON, et al., :

Defendants

MEMORANDUM

Plaintiff Ismael Rosario (“Rosario”), an inmate in the custody of the

Pennsylvania Department of Corrections (“DOC”), filed this pro se civil rights

action pursuant to 42 U.S.C. § 1983. (Doc. 1). Named as defendants are

Superintendent Salamon and Lieutenant Wooster, who are employed at the

State Correctional Institution at Rockview (“SCI-Rockview”), where Rosario was

previously confined. (Id.).

Before the court is defendants’ motion for judgment on the pleadings.

(Doc. 18). Rosario failed to respond to the motion and the time for responding

has now passed.’ Therefore, the motion is deemed unopposed and ripe for

1 Rosario was directed to file a brief in opposition to defendants’ motion and was

admonished that failure to file an opposition brief would result in the motion being deemed

unopposed. (Docs. 25, 30) (citing LOCAL RULE OF COURT 7.6).

resolution. For the reasons that follow, the motion will be granted, and Rosario

will be afforded the opportunity to file an amended complaint.

I. Allegations of the Complaint

Rosario alleges that, on April 17, 2024, he was placed in the Restricted

Housing Unit (“RHU”) at SCl-Rockview pending an investigation regarding a

threat to his life. (Doc. 1, at 4). The investigation concluded on May 16, 2024,

and Rosario was informed that there were “verified threats of there being a price

on [his] life to either have [him] hurt or killed.” (id.). As a result, Rosario

remained in the RHU at SCI-Rockview until he was transferred to a different

facility. (Id.). However, Rosario alleges that, despite these “threats,” he was

never single-celled but instead had “multiple different inmates” while in the RHU

at SCl-Rockview. (Id.). On June 10, 2024, one of Rosario’s cellmates allegedly

assaulted him and he sustained injuries to his face. (Id.).

Rosario sets forth an Eighth Amendment claim against the defendants

based on their alleged failure to protect him from danger presented by another

inmate and a Fourteenth Amendment equal protection claim. (Id. at 4-5).

ll. Legal Standards

A. Federal Rule of Civil Procedure 12(c)

Federal Rule of Civil Procedure 12(c) provides: “[al]fter the pleadings are

closed—but early enough not to delay trial—a party may move for judgment on

the pleadings.” FED. R. Civ. P. 12(c). “A motion for judgment on the pleadings

based on the defense that the plaintiff has failed to state a claim is analyzed

under the same standards that apply to a Rule 12(b)(6) motion” to dismiss.

Revell v. Port Auth., 598 F.3d 128, 134 (3d Cir. 2010). The only significant

difference between a Rule 12(c) motion and a Rule 12(b)(6) motion is that, on a

motion for judgment on the pleadings, the court reviews not only the complaint

but also the answer and written instruments attached to the pleadings. See 2

James Wm. Moore et al., Moore’s Federal Practice Civil § 12.38 (Matthew

Bender 3d ed. 2013).

Accordingly, in assessing such a motion, “the court must ‘view the facts

presented in the pleadings and the inferences to be drawn therefrom in the light

most favorable to the nonmoving party’ and may not grant the motion ‘unless the

movant clearly establishes that no material issue of fact remains to be resolved

and that he is entitled to judgment as a matter of jaw.” Wolfington v.

Reconstructive Orthopaedic Assocs. Il PC, 935 F.3d 187, 195 (3d Cir. 2019)

(quoting In re Asbestos Prods. Liab. Litig. (No. VI, 822 F.3d 425, 133 n.6 (3d Cir.

2016)). If the facts alleged raise a right to relief above the speculative level, then

the claim is plausible on its face and will survive a motion for judgment on the

pleadings. See Turbe v. Gov't of Virgin Islands, 938 F.2d 427, 428 (3d Cir.

1991). in deciding motions for judgment on the pleadings, the court considers

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

well as undisputedly authentic documents if the complainant's claims are based

upon these documents.” Wolfington, 935 F.3d at 195 (quoting Mayer v.

Belichick, 605 F.3d 223, 230 (3d Cir. 2010)).

B. Section 1983 Standard

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). Thus, § 1983 limits liability to persons who violate constitutional rights.

ll. Discussion

A. Eighth Amendment Failure to Protect Claim

“lT]he Eighth Amendment's Cruel and Unusual Punishments Clause

imposes on prison officials ‘a duty to protect prisoners from violence at the hands

of other prisoners.” Bistrian v. Levi, 696 F.3d 352, 366 (3d Cir. 2012), abrogated

on other grounds by Mack v. Yost, 968 F.3d 311 (3d Cir. 2020) (quoting Farmer

v. Brennan, 511 U.S. 825, 833 (1994)). However, not “every injury suffered by

one prisoner at the hands of another...translates into constitutional liability for

prison officials responsible for the victim's safety.” Farmer, 511 U.S. at 834. To

state a viable failure-to-protect claim under the Eighth Amendment, a plaintiff

must plead facts to support 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, 696 F.3d at 367. The standard for deliberate

indifference is subjective; thus, “the prison official—defendant 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). The facts alleged in Rosario's

complaint do not satisfy this standard.

Rosario has not sufficiently alleged a failure to protect claim against the

defendants. The complaint does not allege that the defendants were aware of

any acts of violence or that they had prior knowledge of any threats of violence

against Rosario. (See Doc. 1, at 4). In fact, Rosario does not assert that he had

any communication with the defendants about his personal safety. Nor does he

identify the inmate that allegedly assaulted him or indicate that the assault was

the product of “longstanding, pervasive, well-documented, or previously noted

tensions between” Rosario and the other inmate. Blackstone v. Thompson, 568

F. App’x 82, 84 (3d Cir. 2014). Moreover, nothing in the complaint supports a

reasonable inference that defendants were aware of, and deliberately indifferent

to, “any specific incident or cause of tension between the cellmates from which a

greater inference of risk could be drawn.” Id.

Rosario also failed to allege any facts suggesting that the defendants were

personally involved in the alleged wrongful conduct. (See Doc. 1, at 4).

Individual liability can be imposed under § 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 person 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. Rosario

failed to set forth any allegations that the defendants were actually aware of the

risk of assault. Other than naming Superintendent Salamon and Lieutenant

Wooster as defendants, the complaint does not set forth a single allegation

against them. (See Doc. 1).

To the extent that the defendants are sued based on their supervisory role:

as Superintendent and Lieutenant, this claim fails. Any attempt by Rosario to

hold the defendants liable for the actions of their subordinates is essentially an

assertion of respondeat superior liability which seeks to hold these defendants

liable based on their supervisory roles. This ground of constitutional liability has

been routinely rejected by the courts. See Rode, 845 F.2d at 1207.

Consequently, the court will grant defendants’ motion for judgment on the

pleadings on Rosario’s Eighth Amendment failure to protect claim, with leave to

amend.

B. Fourteenth Amendment Equal Protection Claim

The Equal Protection Clause of the Fourteenth Amendment states that no

state may “deny to any person within its jurisdiction the equal protection of the

laws.” U.S. ConsT. amend. XIV, § 1. The Equal Protection Clause “is essentially

a direction that all persons similarly situated should be treated alike.” City of

Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985) (citing Plyler v.

Doe, 457 U.S. 202, 216 (1982)). “[T]o bring a successful equal protection claim,

plaintiffs ‘must demonstrate that they received different treatment from that

received by other individuals similarly situated.’”” Children's Health Defense, Inc.

v. Rutgers, the State Univ. of N.J., 93 F.4th 66, 84 (3d Cir. 2024) (quoting

Chambers ex rel. Chambers v. Sch. Dist. of Phila. Bd. of Educ., 587 F.3d 176,

196 (3d Cir. 2009)). At the pleading stage, a plaintiff must make nonconclusory

allegations that he and the similarly situated individuals who were allegedly

treated differently from him are “alike ‘in all relevant respects.” Id. (quoting

Harvard v. Cesnalis, 973 F.3d 190, 205 (3d Cir. 2020)).

Defendants argue that they are entitled to judgment on the pleadings with

respect to Rosario’s equal protection claim because Rosario failed to allege that

he was treated differently from any similarly situated individuals. (Doc. 19, 4-5).

The court agrees. There are simply no allegations in the complaint that Rosario

was treated differently from any similarly situated individuals. (See Doc. 1).

Other than a one-line reference to the equal protection clause (id. at 5), the

complaint is devoid of any allegations to establish that any other inmates, who

were treated differently from him, were “alike in all relevant respects” to Rosario.

Children’s Health Defense, Inc,, 93 F.4th at 84. Accordingly, Rosario has failed

to allege the existence of similarly situated individuals, and the court will grant

defendants’ motion for judgment on the pleadings on the equal protection claim,

with leave to amend.

IV. Leave to Amend

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

to dismissal for failure to state a claim, the 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). Because Rosario may

be able to allege facts sufficient to cure the pleading deficiencies identified in this

memorandum, his Eighth Amendment failure to protect and Fourteenth

Amendment equal protection claims will be dismissed without prejudice and with

leave to amend.”

V. Conclusion

Consistent with the foregoing, the court will grant defendants’ motion (Doc.

18) for judgment on the pleadings and will grant Rosario leave to amend. Within

2 The court notes that Rosario previously filed an “amended complaint.” (Doc. 16).

This amended complaint will be stricken because Rosario failed to comply with the

requirements of Federal Rule of Civil Procedure 15 before filing his amended complaint.

Decisions regarding motions to amend pleadings rest in the sound discretion of the

district court and will not be disturbed absent an abuse of discretion. See Bjorgung v. Whitetai

Resort, LP, 550 F.3d 263 (3d Cir. 2008); Cureton v. National Collegiate Athletic Ass'n, 252

F.3d 267 (3d Cir. 2001). That discretion, however, is governed by the principles in Rule 15,

which provides in part as follows:

(a) Amendments Before Trial.

(1) Amending as a Matter of Course. A party may amend its pleading once as a

matter of course within:

days after serving it, or

(B) if the pleading is one to which a responsive pleading is required, 21 days

after service of a responsive pleading or 21 days after service of a motion

under Rule 12(b), (e), of (f}, whichever is earlier.

(2) Other Amendments. !n all other cases, a party may amend its pleading only with

the opposing party's written consent or the court’s leave. The court should freely

give leave when justice so requires

Feo. R. Civ. P. 15(a).

Here, Rosario did not seek leave of court or defendants’ consent before filing his

amended complaint, and he did not file the amended complaint within the 21-day period

following service of the complaint or filing of the answer, as required by the Rule. Therefore,

under Rule 15(a)(1) and (2), the amended complaint (Doc. 16) is unauthorized and improper.

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21 days of the date of the accompanying order, Rosario may file an amended

complaint with respect to his Eighth Amendment failure to protect claim and

Fourteenth Amendment equal protection claim. If Rosario fails to file an

amended complaint within this time, this action will be dismissed.

BY THE COURT:

7 ~———_\ □

JUDGE JULIA K: MUNL

or States District ¢

Dated: October JU, 2025

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