Opinion
Civil Action 3: 20-cv-0243
06-22-2022
SHAWN KING, Plaintiff, v. BARRY SMITH, Superintendent; BOBBI JO SALAMON, Deputy Superintendent/PRC; DAVID CLOSE, Deputy Superintendent, MICHELLE IVIC, Deputy Superintendent, and LUCINDA GAINEY, Mail Inspector Supervisor, Defendants.
Kim R. Gibson, United States District Judge
REPORT AND RECOMMENDATION ON DEFENDANTS' MOTION TO DISMISS
CYNTHIA REED EDDY, CHIEF UNITED STATES MAGISTRATE JUDGE
I. Recommendation
Before the Court is the Motion to Dismiss the Fourth Amended Complaint, with brief in support, filed by Defendants (ECF Nos. 175 and 176), the response in opposition filed by Plaintiff, Shawn King (ECF No. 178), and the Reply Brief filed by Defendants (ECF No. 181). For following reasons, it is respectfully recommended that the motion be granted in part and denied in part.
II. Report
A. Procedural and Factual Background
Pro se plaintiff Shawn King (King) initiated this case on December 3, 2020, while incarcerated at SCI-Houtzdale. He was granted leave to proceed in forma pauperis on December 14, 2020, and the original complaint was filed that day. (ECF Nos. 5 and 6). The Complaint named only the Pennsylvania Department of Corrections (DOC) and SCI Houtzdale. In response to the Court's Notice of Deficiency, King filed an Amended Complaint naming seven individual defendants. (ECF No. 14). Prior to service, King filed a Second Amended Complaint, naming approximately twenty additional defendants. (ECF No. 49). King then, again prior to service, amended his complaint for the third time, adding eleven new defendants, for a total of thirty-one defendants. (ECF No. 98). After being served, all Defendants filed motions to dismiss. (ECF Nos. 134 and 136). In response to those motions, on November 17, 2021, King filed a Fourth Amended Complaint (FAC), naming only five individuals. The FAC is the subject of the pending motion and remains his operative pleading. (ECF No. 170). King seeks relief pursuant to 42 U.S.C. § 1983.
King filed a Notice of Change of Address on April 6, 2022, notifying the Court that on March 31, 2022, he was transferred from SCI-Houtzdale to SCI-Fayette. (ECF No. 182).
“In general, an amended pleading supersedes the original pleading and renders the original pleading a nullity.” Garrett v. Wexford Health, 938 F.3d 69, 82 (3d Cir. 2019), cert. denied, 140 S.Ct. 1611 (2020). “Thus, the most recently filed amended complaint becomes the operative pleading.” Id.
The Court has jurisdiction over King's claims pursuant to 28 U.S.C. § 1331. This matter has been referred to the undersigned United States Magistrate Judge for a Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b).
The FAC names the following five individuals as defendants: SCI-Houtzdale Superintendent Barry Smith, SCI Houtzdale Deputy Superintendents Bobbi Jo Salamon, David Close, and Michelle Ivic; and SCI Houtzdale Mailroom Inspector Lucinda Gailey. King alleges that Defendants, in their official and individual capacities, failed to provide for his safety and protection in violation of the Eighth Amendment (Count I), housed him in “intolerable conditions” in violation of the Eighth Amendment (Count II), and intentionally delayed / not delivered to him/ or returned to sender, his mail without giving him any notice, in violation of his First, Eighth, and Fourteenth Amendment due process rights. (Count III).
The following facts are taken from the FAC:
In deciding a motion under Federal Rule of Civil Procedure 12(b)(6), the Court must accept all factual allegations in the complaint as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading, the plaintiff may be entitled to relief.
On approximately December 25, 2019, while housed in the I block housing unit at SCI-Houtzdale, King requested to be to be moved to another cell as his cellmate “became unbearable to live with.” His request was denied and, thereafter, King “was accused by other inmates on the block of bullying inmate/cellmate Bobby Williams, and began to receive threats.” Two days later, King was moved a short distance across from I unit to J block. (FAC, ¶¶ 3-7). Soon thereafter, King began having difficulties with his J block cellmate and continued to have “runins with inmates from I block.” (Id., ¶ 7). Approximately four days later, King was transferred to disciplinary segregation for thirty days, during which time he alleges he was threatened by his cellmate. (Id., ¶ 15). King notified officers of this threat and was “removed from the cell and pod and placed in a dirty cell, that smelled of pepper spray and without a properly working toilet for nearly thirty-six hours.” (Id., ¶ 16). King was released from disciplinary custody and housed on F/B Unit, with two different but both difficult cellmates.
On April 26, 2020, King was returned to I/B unit and was assigned to share a cell again with Bobby Williams. King expressed concern about this cell assignment and, in response, the Unit Manager reassigned King to a different cell with Nathaniel Love. (Id., ¶¶ 17 - 19). According to the FAC, Love “often attempted to intimidate, bully, and threaten the Plaintiff.” After an “incident” between King and Love on May 31, 2021, which required “inmate Love to be taken to medical,” King was taken to the RHU for disciplinary pre-hearing confinement and eventually given 180 days disciplinary custody. (Id., ¶¶ 25-26). King alleges that “[b]y the middle of June 2020, he began to receive threats from other inmates that sought retaliation for inmate Love and from others that claimed to be blood related to or otherwise associated with the victim in the case he is serving his current state sentence.” (Id., ¶ 29).
King became concerned for his safety and requested protective custody and separations from certain prisoners and staff. He alleges that his requests to the Superintendent, the RHU captain, the Program Review Committee members, and his numerous grievances were either ignored or denied. He was notified on November 26, 2020, that prison authorities had decided to release him from RHU into general population. King refused to leave his cell to be transferred to general population and, as a result, was issued numerous misconducts. See FAC, Exh. B, Misconduct Reports (ECF 170-3).
On December 6, 2021, King was placed on AC status after it was determined “there may be a security/safety concern with inmate King's placement in general population and he is pending a possible transfer.” Resp., Exh. B. (ECF 178-2 at p. 1). King notified the Court that on March 31, 2022, he was transferred from SCI-Houtzdale to SCI-Fayette.
B. Standard of Review
A motion to dismiss filed pursuant to Rule 12(b)(6) tests the legal sufficiency of the complaint. Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993). The Supreme Court of the United States has issued two decisions that pertain to the standard of review for failure to state a claim upon which relief could be granted. In Ashcroft v. Iqbal, the Supreme Court held that a complaint must include factual allegations that “state a claim to relief that is plausible on its face.” 556 U.S. 662, 678 (2009) (citing BellAtl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “[W]ithout some factual allegation in the complaint, a claimant cannot satisfy the requirement that he or she provide not only ‘fair notice' but also the ‘grounds' on which the claim rests.” Phillips v. County of Allegheny, 515 F.3d 224, 232 (3d Cir. 2008). In determining whether a plaintiff has met this standard, a court must reject legal conclusions unsupported by factual allegations, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements;” “labels and conclusions;” and “ ‘naked assertion[s]' devoid of ‘further factual enhancement.'” Iqbal, 556 U.S. at 678 (citations omitted). Mere “possibilities” of misconduct are insufficient. Id. at 679. The United States Court of Appeals for the Third Circuit has summarized the inquiry as follows:
To determine the sufficiency of a complaint, a court must take three steps. First, the court must “tak[e] note of the elements a plaintiff must plead to state a claim.” Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1947, 173 L.Ed.2d 868 (2009). Second, the court should identify allegations that, “because they are no more than conclusions, are not entitled to the assumption of truth.” Id. at 1950. Third, “whe[n] 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.” Id. This means that our inquiry is normally broken into three parts: (1) identifying the elements of the claim, (2) reviewing the complaint to strike conclusory allegations, and then (3) looking at the well-pleaded components of the complaint and evaluating whether all of the elements identified in part one of the inquiry are sufficiently alleged.Malleus v. George, 641 F.3d 560, 563 (3d Cir. 2011). Although this Court must accept the allegations in the FAC as true, it is “not compelled to accept unsupported conclusions and unwarranted inferences, or a legal conclusion couched as a factual allegation.” Baroka v. McGreevey, 481 F.3d 187, 195 (3d Cir. 2007) (citations omitted).
With this standard in mind, the undersigned now turns to its analysis and discussion of the pending motion.
C. Discussion
Defendants argue that dismissal of all Defendants and all claims is warranted on the following grounds: (1) lack of personal involvement; (2) failure to state a failure to protect claim; and (3) failure to plead a First or Fourteenth Amendment violation with respect to the claims about his mail interference. The Court will address each of these arguments in turn.
1. Lack of Personal Involvement
The United States Court of Appeals for the Third Circuit has identified two general ways in which a supervisor-defendant may be liable for unconstitutional acts undertaken by subordinates. First, liability may attach if the supervisor, “with deliberate indifference to the consequences, established and maintained a policy, practice, or custom which directly caused [the] constitutional harm.” A.M. ex rel. J.M.K. v Luzerne Cnty. Juvenile Det. Ctr., 372 F.3d 572, 586 (3d Cir. 2004) (quoting Stoneking v. Bradford Area Sch. Dist., 882 F.2d 720, 725 (3d Cir. 1989)). Second, “a supervisor may be personally liable under § 1983 if he or she participated in violating the plaintiff's rights, directed others to violate them, or, as the person in charge, had knowledge of and acquiesced” in the subordinate's unconstitutional conduct. Id. (citing Baker v. Monroe Twp., 50 F.3d 1186, 1190-91 (3d Cir. 1995)). “Allegations of participation or actual knowledge and acquiescence, however, must be made with appropriate particularity.” Rode, 845 F.2d at 1208.
Defendants argue that Defendants Smith, Salamon, Close, and Ivic are administrators and, as such, had no personal involvement in King's claims other than in reviewing grievances or as members of the SCI-Houtzdale Program Review Committee. Br. at pp. 5-6. King responds that Defendants comprised the Program Review Committee, and it was at their direction that “subordinates” repeatedly ignored his requests for protective custody and that none of these defendants took corrective action when warranted.
The Court finds that King's allegations require further analysis. He alleges, inter alia, that Superintendent Smith denied his grievances without adequate investigation. “In the prison setting, where a grievance alleges an ongoing constitutional violation, a supervisory defendant who reviews it is personally involved in that violation because he is confronted with a situation he can remedy directly.” Whitehead v. Rozum, No. 11-102, 2012 WL 4378193, at *2 (W.D. Pa. Aug. 7, 2012), report and recommendation adopted by, 2012 WL 4370929 (W.D. Pa. Sept. 24, 2012). As such, to the extent that King alleges there were ongoing constitutional violations that Superintendent Smith was made aware of, King has plausibly stated a claim for which Superintendent Smith may be liable. Therefore, for purposes of a motion to dismiss, the undersigned finds that King has stated a claim against Superintendent Smith.
The undersigned also finds that King has plausibly stated a claim against Deputy Superintendents Salamon, Close, and Ivic. All three were on the Program Review Committee which met regularly with King and, although King repeatedly voiced concerns about his safety, they disregarded his concerns and continued to recommend that he be released to general population.
The undersigned recognizes that discovery may well reveal that King's allegations do not support his allegations that any of these four Defendants had personal involvement in any alleged constitutional violation, but at this early stage of the litigation, the allegations of the FAC must be accepted as true and all reasonable inferences must be drawn in King's favor. The factual allegations of the FAC are enough to state a plausible claim that Defendants Smith, Salamon, Close, and Ivic participated in violating King's rights, directed others to violate them, or, as persons in charge, had knowledge of and acquiesced in their subordinates' violations.
2. Failure To State A Failure-To-Protect Claim
King contends that Defendants failed to protect him from threats and harassment issued by other prisoners and staff members. To establish a claim based on a prison official's failure to protect an prisoner from violence, a plaintiff must plead facts showing that: (1) the prisoner was incarcerated under conditions posing a substantial risk of serious harm, (2) the official was deliberately indifferent to that substantial risk to the prisoner's health and safety, and (3) the official's deliberate indifference caused the prisoner harm. Farmer, 511 U.S. at 834. King contends that he repeatedly informed Defendants of the threats and harassment he faced, yet his concerns were ignored.
In seeking dismissal of this claim, Defendants maintain that King was never harmed and that he has not established that he was incarcerated under conditions posing a substantial risk of serious harm. Br., pp. 10 - 12. (ECF No. 176). In support, Defendants rely on Blackstone v. Thompson, 568 Fed.Appx. 82 (3d Cir. 2014). In Blackstone, the Court of Appeals affirmed the District Court's order granting summary judgment, “agree[ing] with the District Court that Blackstone did not adduce evidence to show that [the defendant] operated from the requisite mindset.” Id. at 84. Based on the summary judgment evidence, the Court of Appeals concluded that Blackstone's statements were not enough to establish that the defendant knew of and intentionally disregarded a risk. Because Blackstone was decided at the summary judgment, rather than the motion to dismiss, stage, reliance on Blackstone is inapposite at this time.
The Court of Appeals for the Third Circuit has noted, “the Eighth Amendment not only protects against harm, but also protects against the risk of harm.” Travillion v. Wetzel, 765 Fed.Appx. 785, 795 (3d Cir. 2019) (citing Shelton v. Bledsoe, 75 F.3d 554, 564-65 (3d Cir. 2015)). Thus, prison officials have an obligation “to act reasonably to ensure a safe environment for a prisoner when they are aware that there is a significant risk of serious injury to that prisoner . . . whether or not an attack actually occurs, and if it does occur, whether or not the injury suffered in that attack are serious.” Myer v. Giroux, 2018 WL 6831147, at *7 n.4 (W.D. Pa. Dec. 28, 2018) (citing Heisler v. Kralik, 981 F.Supp. 830, 837 (S.D.N.Y. Oct. 29, 1997)). See also Riley v. Jeffes, 777 F.2d 143, 146 (3d Cir. 1985) (“An inmate's right to be protected from constant threats of violence and sexual assault from other inmates does not require that he wait until he is actually assaulted before obtaining relief.”)). King has identified several instances in which other prisoners threated him with physical violence and has specifically identified both prisoners and staff members from whom he was requesting protective custody and separations. FAC, Exh. A. (ECF No. 170-2, p. 21).
At this stage of the proceedings, without the benefit of any discovery, and drawing all inferences in King's favor, the undersigned concludes that King's allegations are sufficient to state a failure to protect claim and, thus, recommends that Defendants' request to dismiss this claim be denied.
3. Failure To State A Mail Interference Claim
Defendants' final argument is that King's claims with respect to alleged mail interference are threadbare and should be dismissed. King asserts in the FAC that the mail interference was not an isolated incident, but that numerous letters and publications mailed to him were never received, despite invoices indicating the publications had been mailed. Prisoners have a First Amendment right to receive mail, although that right may be restricted for legitimate penological reasons. Prison officials do not have unfettered discretion to censor or restrict a prisoner's mail and interference with a prisoner's mail can give rise to constitutional claims. Gray v. Creamer, 465 F.2d 179, 186 (3d Cir. 1972); see also Thornburgh v. Abbott, 490 U.S. 401, 407 (1989); Turner v. Safley, 482 U.S. 78, 85 (1987).
In the instant case, it cannot be determined from the FAC whether the nondelivery of King's mail was the result of censorship on the part of the defendants or mishandling on the part of delivery personnel. However, giving the allegations of the FAC the liberal construction that this Court must give at this early stage of the litigation, and resolving all factual inferences against the Defendants, it cannot be said that King's allegations do not raise plausible First Amendment and Fourteenth Amendment due process claims. Therefore, the undersigned recommends Defendants' request to dismiss this claim be denied.
Defendants recognize that “[w]hile it is possible that multiple instances of mail delays may state a First Amendment claim, the Fourth Amended Complaint does not plead that the number or type of mail King supposedly did not receive is unacceptable (sic).” Br. at p. 13. And as to a claim under the Fourteenth Amendment, Defendants argue that King has not pleaded which mail was rejected or what notice he received. Id. at p. 14. The undersigned notes that the details of this claim can be fleshed during discovery.
4. Two Additional Claims Not Enumerated In The FAC
Defendants recognize that King may have pled a retaliation claim and a conspiracy claim in his FAC, but ask the Court to not construe claims beyond the three enumerated in the FAC. Resp., pp. 15-19 (ECF No. 176). However, because King has “filed his complaint pro se, [the court] must liberally construe his pleadings, and . . . apply the applicable law, irrespective of whether the pro se litigant has mentioned it by name.” Dluhos v. Strasberg, 321 F.3d 365, 369 (3d. Cir. 2003) (citation omitted); see also Erickson v. Pardus, 551 U.S. 89; 94 (2007) (per curiam) (instructing that pro se complaints must be construed liberally); Haines v. Kerner, 404 U.S. 519, 520 (1972) (holding pro se complaints to “less stringent standards than formal pleadings drafted by lawyers”).
a. Retaliation Claim
The FAC sets forth a number of acts taken by Defendants which King alleges were taken in retaliation for him engaging in protected activity, including the following:
• defendants “have elected to punish [him] by issuing misconducts and placing him under the harshest conditions available to them in disciplinary segregation.” FAC, Introduction - Summary of Facts - p. 7;
• “These conditions are intentionally inflicted as a means of cruelty and are unusual in that plaintiff is so being punished with intolerable conditions for being afraid to be housed in general population.” Id., p. 23;
• “Prison authorities; Barry Smith, the members of the PRC, and Captain Jones have made the decision to house and continue to house plaintiff under described conditions, without respite as retaliation for judicial actions filed and the volume of submitted grievances. Id.; p. 24; and
• “This complaint represents prison authorities blithe disregard and inaction for the plaintiff's safety and life, a peculiar indifference, which can only be explained by being intentionally or even encouraged as retaliatory in nature . . . . Id., p. 28.
The undersigned finds that the FAC sufficiently alleges facts to state a retaliation claim and, therefore, recommends that Defendants' argument to dismiss this claim be denied.
b. Conspiracy Claim
Such is not the case, however, with King's attempt to state a conspiracy claim. The undersigned agrees with Defendants and finds that such a claim has not been pled with particularity. Thus, to the extent King has attempted to bring a conspiracy claim, such should be dismissed. As King has amended his complaint four times already, leave to amend would be futile.
III. Conclusion
For all the above reasons, it is respectfully recommended that the motion to dismiss be granted in part and denied in part as follows:
1. To the extent King has asserted a conspiracy claim, it is recommended that such claim be dismissed as it has not been pled with particularity and that Defendants' request to dismiss this claim be granted. It is further recommended that leave to amend be denied as futile.
2. To the extent King has asserted a retaliation claim, it is recommended that such claim be allowed to proceed and that Defendants' request to dismiss this claim be denied.
3. In all other respects, it is recommended that the motion to dismiss be denied.
Any party is permitted to file Objections to this Report and Recommendation to the assigned United States District Judge. In accordance with 28 U.S.C. § 636(b), Fed.R.Civ.P. 6(d) and 72(b)(2), and LCvR 72.D.2, Plaintiff, because he is a non-electronically registered party, may file written objections, if any, to this Report and Recommendation by July 11, 2022 and Defendants, because they are electronically registered parties, may file written objections, if any, by July 7, 2022. The parties are cautioned that failure to file Objections within this timeframe “will waive the right to appeal.” Brightwell v. Lehman, 637 F.3d 187, 193 n. 7 (3d Cir. 2011) (quoting Siers v. Morrash, 700 F.2d 113, 116 (3d Cir. 1983). See also EEOC v. City of Long Branch, 866 F.3d 93, 100 (3d Cir. 2017) (describing standard of appellate review when no timely and specific objections are filed as limited to review for plain error).