Opinion
Civil Action 4:21-CV-218
08-31-2023
AARON J. NICHOLS, et al., Plaintiffs v. C.O. KONYCKI, et al., Defendants
MANNION, D.J.
REPORT & RECOMMENDATION
William I. Arbuckle U.S. Magistrate Judge
I. INTRODUCTION
Four current and former state inmates allege that a corrections officer sprayed them with pepper spray for no reason, then turned off the water to their cells. Five corrections officers, during two different shifts, left the inmates in their contaminated cells, and offered no medical care. The inmates waited twelve hours for medical care and for an opportunity to wash the pepper spray residue from their bodies. The inmates allege that their Eighth and Fourteenth Amendment rights were violated because: the unprovoked use of pepper spray was excessive; they were denied access to medical care; and they were subjected to inhumane conditions of confinement for twelve hours.
Currently before the Court is Moving Defendants' motion to dismiss these claims. (Doc. 36). For the reasons explained herein, it will be recommended that Moving Defendants' motion be granted in part and denied in part. We will also recommend that Plaintiffs be granted leave to file a second amended complaint.
II. BACKGROUND & PROCEDURAL HISTORY
On February 2, 2020, Aaron J. Nichols, Michael Burke, Victor Roman, and Warren P. Snow (“Plaintiffs”) were incarcerated at the State Correctional Facility at Retreat (“SCI Retreat”). (Doc. 24, ¶ 2). They were housed in two neighboring cells. Id. Plaintiffs' allege that, at approximately 7:00 p.m. on the evening of February 2, 2020, Defendant Konycki handed a canister of oleoresin pepper spray to Defendant Kerschner. (Doc. 24, ¶ 5). Defendant Kerschner took that cannister of pepper spray, walked to a breezeway that shared a wall with Plaintiffs' cells, and sprayed the pepper spray through holes and cracks in the walls of Plaintiffs' cells. (Doc. 24, ¶ 5). Plaintiffs allege that Defendant Kerschner had no justifiable reason to deploy the pepper spray at that time. Id.
The spray hit Plaintiffs in the face and chest and got into their lungs and eyes. (Doc. 24, ¶ 6). After the pepper spray was deployed, Plaintiffs were in considerable distress. (Doc. 24, ¶ 7).
Plaintiffs allege that the cells where they were housed were largely enclosed but for the area designed for sliding through meal trays. (Doc. 24, ¶ 8). Plaintiffs only way to get fresh air was through small slots designed to accommodate meal trays. Id. Plaintiffs also allege that, at the time of the incident, there was no running water in either cell. (Doc. 24, ¶ 9). They allege that Defendant Kerschner shut off the water without authorization. (Doc. 24, ¶ 9).
Plaintiffs were left in their contaminated cells for twelve hours with their eyes burning, no access to water to flush their eyes, and poor ventilation to disburse the pepper spray. (Doc. 24, ¶ 10). No corrections officer attempted to help them until two officers from the morning shift took them for medical treatment and decontaminated their cells. Id.
On February 6, 2021, Plaintiffs initiated this civil rights action alleging that Defendants Konycki and Kerschner used excessive force when they deployed pepper spray for no reason, that all officers on staff that evening (including Konycki and Kerschner) denied them adequate medical care, and that all officers on staff subjected them to unconstitutional conditions of confinement. On May 6, 2022, after discovering the identity of those officers, Plaintiffs filed an amended complaint. (Doc. 24). That amended complaint is the operative pleading in this case. In their amended complaint, Plaintiffs plead only one count-titled “42 U.S.C. § 1983 Violation of Eight[h] & Fourteenth Amendments.” (Doc. 24, p. 8). They allege that this count is asserted by Plaintiffs against the Individual Defendants. Based on our reading of the allegations under that single count, Plaintiffs appear to assert the following six legal claims:
(1) Eighth Amendment Excessive Force (use of pepper spray) against Defendants Kerschner and Konycki;
(2) Fourteenth Amendment Excessive Force (use of pepper spray) against Defendants Kerschner and Konycki;
(3) Eighth Amendment Denial of Access to Medical Care following exposure to pepper spray against Defendants Konycki, Scott, Kerschner, Stockholm, Yost, Bronsburg, Klick, and Wassel;
(4) Fourteenth Amendment Denial of Access to Medical Care following exposure to pepper spray against Defendants Konycki, Scott, Kerschner, Stockholm, Yost, Bronsburg, Klick, and Wassel;
(5) Eighth Amendment Unconstitutional Conditions of Confinement (cell contaminated by pepper spray and without running water) against Defendants Konycki, Scott, Kerschner, Stockholm, Yost, Bronsburg, Klick, and Wassel; and
(6) Fourteenth Amendment Unconstitutional Conditions of Confinement (cell contaminated by pepper spray and without running water) against Defendants Konycki, Scott, Kerschner, Stockholm, Yost, Bronsburg, Klick, and Wassel.
The amended complaint identifies Defendants Konycki, Scott and Kerschner as second shift correctional officers, Defendants Stockholm and Yost as third shift corrections officers, and Defendants Bronsburg, Klick, and Wassel as supervisory officials. (Doc. 24, ¶ 1). All Defendants are sued in their individual and official capacities. Id. As relief, Plaintiffs seek compensatory and punitive damages.
On September 22, 2022, Defendants Konycki, Scott, Stockholm, Yost, Bronsburg, Klick, and Wassel (“Moving Defendants”), filed a motion to dismiss. (Doc. 36). On October 6, 2022, Moving Defendants filed a brief in support. (Doc. 37). On October 26, 2022, Plaintiffs filed a brief in opposition. (Doc. 38). On November 8, 2022, Moving Defendants filed a reply. (Doc. 39). Moving Defendants' motion to dismiss has been fully briefed, and is ready to decide.
To date, Defendant Kerschner has not participated in this action. In June 2022, Plaintiffs requested that the Clerk of Court enter default as to Defendant Kerschner. (Doc. 28). In July 2022, Plaintiffs filed a motion for default judgment as to Defendant Kerschner. (Doc. 31). Plaintiffs' motion was denied without prejudice, finding that it was more appropriate in this case to resolve this issue once the remaining claims against the non-defaulting Defendants are resolved on the merits. (Docs. 40, 41).
III. LEGAL STANDARDS
It is helpful to restate the familiar legal standard for ruling on a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure. We will also discuss the legal standards relevant to Plaintiffs' claims in this case.
A. Motions To Dismiss Under Rule 12(b)(6)
Rule 12(b)(6) of the Federal Rules of Civil Procedure authorizes a defendant to seek dismissal for failure to state a claim upon which relief can be granted. To assess the sufficiency of a complaint when dismissal is sought under Rule 12(b)(6), a court should: (1) take note of the elements a plaintiff must plead to state a claim; (2) identify mere conclusions which are not entitled to the assumption of truth; and (3) determine whether the complaint's factual allegations, taken as true, could plausibly satisfy the elements of a legal claim.
Burtch v. Milberg Factors, Inc., 662 F.3d 212, 221 (3d Cir. 2011).
In order for his or her allegations to be taken as true, a plaintiff must provide some factual ground for relief, which “requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.”“Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Thus, courts “need not credit a claimant's ‘bald assertions' or ‘legal conclusions' when deciding a motion to dismiss.” The court also need not assume that a plaintiff can prove facts that he or she has not alleged.
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997) (quoting In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1429-30 (3d Cir. 1997)).
Associated Gen. Contractors of Cal. v. Cal. State Council of Carpenters, 459 U.S. 519, 526 (1983).
“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.” The court must accept as true all allegations in the complaint, and any reasonable inferences that can be drawn therefrom are to be construed in the light most favorable to the plaintiff. This “presumption of truth attaches only to those allegations for which there is sufficient ‘factual matter' to render them ‘plausible on [their] face.'” The plausibility determination is contextspecific and does not impose a heightened pleading requirement.
Palakovic v. Wetzel, 854 F.3d 209, 219-20 (3d Cir. 2017) (quoting Iqbal, 556 U.S. at 678) (internal quotation marks omitted); see also Sheridan v. NGK Metals Corp., 609 F.3d 239, 262 n.27 (3d Cir. 2010).
Jordan v. Fox Rothschild, O'Brien & Frankel, 20 F.3d 1250, 1261 (3d Cir. 1994).
Schuchardt v. President of the United States, 839 F.3d 336, 347 (3d Cir. 2016) (internal quotation and citation omitted) (alternations in original).
Id. at 347.
B. Claims Under 42 U.S.C. § 1983
Plaintiffs' Eighth and Fourteenth Amendment claims are brought under 42 U.S.C. § 1983. “Section 1983 imposes civil liability upon any person who, acting under the color of state law, deprives another individual of any rights, privileges, or immunities secured by the Constitution or laws of the United States.” “It is well settled that § 1983 does not confer any substantive rights, but merely ‘provides a method for vindicating federal rights elsewhere conferred.'” To establish a claim under § 1983, Plaintiffs must establish a deprivation of a federally protected right and that this deprivation was committed by a person acting under color of state law.
Shuman ex rel. v. Penn Manor Sch. Dist., 422 F.3d 141, 146 (3d Cir. 2005).
Williams v. Pennsylvania Hum. Rels. Comm'n, 870 F.3d 294, 297 (3d Cir. 2017) (quoting Hildebrand v. Allegheny Ctny., 757 F.3d 99, 104 (3d Cir. 2014)).
Woloszyn v. Cnty. of Lawrence, 396 F.3d 314, 319 (3d Cir. 2005).
Section 1983 plaintiffs must show that each and every defendant was personally involved in depriving them of their rights. “This means that each defendant must have played an ‘affirmative part' in the complained-of misconduct.” These principles also apply where the defendant is a supervising prison official.
Mowery v. Overmyer, No. 1:22-CV-00180-RAL, 2023 WL 3800016, at *5 (W.D. Pa. June 2, 2023).
Id. (citing Iqbal, 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)).
See, e.g., Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988) (noting that liability for supervisory officials must still be based on “personal involvement in the alleged wrongs”); Evancho v. Fisher, 423 F.3d 347, 353 (3d Cir. 2005) (“[Liability cannot be predicated solely on the operation of respondeat superior. ”).
Although a supervisor cannot encourage constitutional violations, “a supervising public official has [no] affirmative constitutional duty to supervise and discipline so as to prevent violations of constitutional rights by his or her subordinates.” Chinchello v. Fenton, 805 F.2d 126, 133 (3d Cir. 1986); Brown v. Grabowski, 922 F.2d 1097, 1120 (3d Cir. 1990). Moreover, it is “well established that the filing of a grievance is not sufficient to show the actual knowledge necessary for a defendant to be found personally involved in the alleged unlawful conduct.” Mearin v. Swartz, 951 F.Supp.2d 776, 782 (W.D. Pa. 2013). See also Mincy v. Chmielsewski, 508 Fed.Appx. 99, 104 (3d Cir. 2013) (“[A]n officer's review of, or failure to investigate, an inmate's grievances generally does not satisfy the requisite personal involvement.”). Rather, a supervisor-defendant may only be liable for unconstitutional acts undertaken by subordinates if the supervisor either: (1) with deliberate indifference to the consequences, established and maintained a policy, practice or custom which directly caused [the] constitutional harm; or (2) 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. A.M. ex rel. J.M.K. v. Luzerne Cty. Juvenile Det. Ctr., 372 F.3d 572, 586 (3d Cir. 2004).
Mowery, 2023 WL 3800016 at *5.
The Eighth Amendment protects convicted prisoners from the infliction of cruel and unusual punishment. U.S. Const. amend. VIII. To prevail on any Eighth Amendment claim, an inmate must show: (1) a deprivation that is objectively, “sufficiently serious;” and (2) “a sufficiently culpable state of mind” of the defendant official. Beyond this general standard, there are different types of Eighth Amendment claims, and different criteria apply depending upon the type of violation alleged.
See Farmer v. Brennan, 511 U.S. 825, 834 (1994).
See Hudson v. McMillian, 503 U.S. 1, 8 (1992).
Unlike convicted prisoners, the Fourteenth Amendment protects a pretrial detainee from the infliction of cruel and unusual punishment.
See Bell v. Wolfish, 441 U.S. 520 (1979) (distinguishing between pretrial detainees' protection from ‘punishment' under the Fourteenth Amendment, and convicted inmates' protection from punishment that is ‘cruel and unusual' under the Eighth Amendment); Montgomery v. Ray, 145 Fed.Appx. 738, 740 (3d Cir. 2005) (“[T]he due process rights of a [pre-trial detainee] are at least as great as the Eighth Amendment protections available to a convicted prisoner.”).
C. Excessive Force Claims Brought by Prisoners
The Eighth Amendment serves as the primary source of substantive protection where an inmate alleges that a prison official's use of force was excessive. It does not, however, protect inmates against an objectively de minimis use of force. The pivotal inquiry in reviewing an inmate's claim of excessive force is “whether the force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm.”
Brooks v. Kyler, 204 F.3d 102, 106 (3d Cir. 2000) (citing Whitley v. Albers, 475 U.S. 312, 327 (1986)).
Hudson, 503 U.S. at 9-10 (“The Eighth Amendment's prohibition of ‘cruel and unusual' punishments necessarily excludes from constitutional recognition de minimis uses of physical force provided that the use of force is not of a sort ‘repugnant to the conscience of mankind.'”).
Whitley, 475 U.S. at 320-322.
In making this determination courts examine the following factors:
(1) “the need for the application of force”; (2) “the relationship between the need and the amount of force that was used”; (3) “the extent of injury inflicted”; (4) “the extent of the threat to the safety of staff and inmates, as reasonably perceived by responsible officials on the basis of the facts known to them”; and (5) “any efforts made to temper the severity of a forceful response.”
Brooks, 204 F.3d at 106 (quoting Whitley, 475 U.S. at 322).
To prove an excessive force claim under the Fourteenth Amendment, a pretrial detainee must only show that the officers' use of force was objectively unreasonable, rather than show that the officers were subjectively aware that their use of force was unreasonable.
Kingsley v. Hendrickson, 576 U.S. 389, 392 (2015).
D. Denial of Medical Care Claims Brought by Prisoners
To establish the violation of a convicted prisoner's right to adequate medical care under the Eighth Amendment,
an inmate is required to point to evidence that demonstrates (1) a serious medical need, and (2) acts or omissions by prison officials that indicate deliberate indifference to that need. Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir. 1999). Deliberate indifference to a serious medical need involves the “unnecessary and wanton infliction of pain.” Estelle [v. Gamble, 429 U.S. 97, 104 (1976)]. Such indifference may be evidenced by an intentional refusal to provide care, delayed provision of medical treatment for non-medical reasons, denial of prescribed medical treatment, denial of reasonable requests for treatment that results in suffering or risk of injury, Durmer v. O'Carroll, 991 F.2d 64, 68 (3d Cir. 1993), or “persistent conduct in the face of resultant pain and risk of permanent injury,” White v. Napoleon, 897 F.2d 103, 109 (3d Cir. 1990).
However, it is also clear that the mere misdiagnosis of a condition or medical need, or negligent treatment provided for a condition, is not actionable as an Eighth Amendment claim because medical malpractice is not a constitutional violation. Estelle, 429 U.S. at 106, 97 S.Ct. 285. “Indeed, prison authorities are accorded considerable latitude in the diagnosis and treatment of prisoners.” Durmer, 991 F.2d at 67 (citations omitted). Furthermore, in a prison medical context, deliberate indifference is generally not found when some significant level of medical care has been offered to the inmate. Thus, such complaints fail as constitutional claims under § 1983 since “the exercise by a doctor of his professional judgment is never deliberate indifference. See e.g. Brown v. Borough of Chambersburg, 903 F.2d 274, 278 (3d Cir. 1990) (‘[A]s long as a physician exercises professional judgment his behavior will not violate a prisoner's constitutional rights.')”. Gindraw v. Dendler, 967 F.Supp. 833, 836 (E.D. Pa. 1997).
Bennett v. PrimeCare Med. Inc., No. 3:18-CV-517, 2018 WL 6072126, at *4 (M.D. Pa. Sept. 14, 2018), report and recommendation adopted, 2018 WL 6062306 (M.D. Pa. Nov. 20, 2018). The proper standard for evaluating a medical or non-medical conditions of confinement claim by a pretrial detainee is to apply the Eighth Amendment's deliberate indifference standard, but viewed in the context of “whether the conditions of confinement (or here, inadequate medical treatment) amounted to punishment prior to an adjudication of guilt.” Fletcher v. Couldwell, No. 2:20-CV-1004, 2023 WL 2894957 (W.D. Pa. Apr. 11, 2023) (quoting Montgomery, 145 Fed.Appx. 738, 740 (3d Cir. 2005)).
A prison official acts with deliberate indifference to an inmate's serious medical need when he “knows of and disregards an excessive risk to inmate health or 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.”
Farmer, 511 U.S. at 837.
E. Conditions of Confinement Claims Brought by Prisoners
In order for a convicted prisoner to plead a plausible conditions of confinement claim, Plaintiffs must allege that: “(1) [they were] incarcerated under conditions imposing a substantial risk of serious harm, (2) the [defendant-officials were] deliberately indifferent to that substantial risk to [Plaintiffs'] health and safety, and (3) the [defendant-officials'] deliberate indifference caused [Plaintiffs] harm.”
See Bistrian v. Levi, 696 F.3d 352, 367 (3d Cir. 2015) abrogated on other grounds by Mack v. Yost, 968 F.3d 311 (3d Cir. 2020).
“[T]he Constitution does not mandate comfortable prisons.” Rhodes v. Chapman, 452 U.S. 337, 349 (1981). Therefore, conditions of imprisonment violate the Eighth Amendment only if they, “alone or in combination . . . deprive inmates of the minimal civilized measures of life's necessities.” See id. at 347. Such necessities include “adequate food, clothing, shelter, and medical care.” See Farmer v. Brennan, 511 U.S. 825, 832 (1994). Thus, “extreme deprivations are required to make out a conditions-of-confinement claim.” See Hudson v. McMillian, 503 U.S. 1, 9 (1992). However, “[s]ome conditions of confinement may establish an Eighth Amendment violation ‘in combination' when each would not do so alone, but only when they
have a mutually enforcing effect that produces the deprivation of a single, identifiable human need such as food, warmth, or exercise.” Mammana v. Fed. Bureau of Prisons, 934 F.3d 368, 372 (3d Cir. 2019) (quoting Wilson, 501 U.S. at 304 and Rhodes, 452 U.S. at 347).
Christian v. Garman, No. 1:20-CV-1842, 2021 WL 1017251, at *6 (M.D. Pa. Mar. 17, 2021); see Fletcher, 2023 WL 2894957 (describing the standard for a fourteenth amendment non-medical conditions of confinement claim).
IV. DISCUSSION
Moving Defendants argue that Plaintiffs' individual capacity claims should be dismissed for two reasons. First, they argue that Plaintiffs do not allege enough facts to suggest Defendant Konycki assisted Defendant Kerschner in the use of force. Second, they argue that Plaintiffs do not allege enough facts to suggest that they were deliberately indifferent to Plaintiffs' medical needs or knowingly denied them of basic necessities by leaving them in a “contaminated cell.” Moving Defendants' also seek dismissal of any official capacity claims. Plaintiffs do not oppose the dismissal of the official capacity claims.
A. Plaintiffs' Excessive Force Claim Against Defendant Konycki Should be Dismissed
The use of force in this case is the unprovoked deployment of pepper spray. The pepper spray was used on Plaintiffs by Defendant Kerschner only. (Doc. 24, ¶ 27). Defendant Konycki's only involvement in that use of force is that he allegedly handed a can of pepper spray to Defendant Kerschner. (Doc. 24, ¶ 5). Plaintiffs characterize Defendant Konycki as Defendant Kerschner's “accomplice.” (Doc. 24, ¶ 8).
Plaintiffs, apparently relying on their characterization of Defendant Konycki as an “accomplice,” argue in their brief that Defendant Konycki is a “coconspirator” in the use of force and “knew what happened and did nothing to mitigate the abuse.” (Doc. 38, p. 4).
1. Plaintiffs Did Not Adequately Plead that Defendant Konycki Conspired With Defendant Kerschner to Use Excessive Force
“[C]onspiracy under § 1983 is not an independent cause of action, but a means to impute liability on third persons.” The mere incantation of the word “conspiracy” in opposition to a motion to dismiss, does not satisfy the pleading requirements of a conspiracy claim. To plead a claim that Defendant Konycki is liable for Defendant Kerschner's actions based on his participation in a conspiracy to use excessive force, Plaintiffs must allege facts that show: “(1) an actual violation of a right protected under § 1983 and (2) actions taken in concert by the defendants with the specific intent to violate the aforementioned right.” A plaintiff must:
Ober v. Miller, No. 1:04-CV-1669, 2007 WL 4443256, at *18 (M.D. Pa. Dec. 18, 2007), aff'd, 395 Fed.Appx. 849 (3d Cir. 2010); see also Landrigan v. City of Warwick, 628 F.2d 736, 742 (1st Cir. 1980) (stating that a § 1983 “[c]onspiracy is merely a mechanism by which to obtain the necessary state action, or to impose liability on one defendant for the acts of the others performed in pursuance of the conspiracy.”) (citations omitted).
Doe v. Pennsylvania State Univ., No. 4:19-CV-01438, 2022 WL 738549, at *11 (M.D. Pa. Jan. 21, 2022) (quoting Campbell v. Balon, No. 4:16-CV-00779, 2017 WL 2880856, at *13 (M.D. Pa. July 6, 2017) and citing Marchese v. Umstead, 110 F.Supp.2d 361, 371 (E.D. Pa. 2000)) report and recommendation adopted 2022 WL 737507 (M.D. Pa. Mar. 10, 2022), reconsideration denied, 2022 WL 4653687 (M.D. Pa. Sept. 30, 2022) aff'd 2023 WL 34090037 (May 12, 2023).
make specific factual allegations of combination, agreement, or understanding among all or between any of the defendants to plot, plan, or conspire to carry out the alleged chain of events.” Thomas v. City of Phila., No. 05-CV-4189, 2006 WL 8459466, at *1 n.3 (E.D. Pa. Apr. 11, 2006) (internal quotations omitted) (quoting Panayotides v. Rabenold, 35 F.Supp.2d 411, 419 (E.D. Pa. 1999), affd, 210 F.3d 358 (3d Cir. 2000)). The plaintiff cannot rely on “conclusory allegations of a conspiracy among defendants” and must instead plead a discernable factual basis for the alleged constitutional violations. Kokinda v. Pa. Dep't of Corr., 779 Fed.Appx. 944, 949 (3d Cir. 2019) (dismissing conspiracy claim).
Id.; see also Jutrowski v. Twp. of Riverdale, 904 F.3d 280, 295 (3d Cir. 2018) (discussing methods of showing agreement); Great W. Mining & Min. Co. v. Fox Rothschild LLP, 615 F.3d 159, 178-79 (3d Cir. 2010) (holding that a § 1983 conspiracy claimant must plead specific facts addressing the time the agreement was made, the period of the conspiracy, the exact parties to the agreement, and the object of the conspiracy); Allen v. Eckard, 804 Fed.Appx. 123, 126 (3d Cir. 2020) (finding that a conclusory allegation that a misconduct hearing officer conspired against the inmate-plaintiff is insufficient to sustain a conspiracy claim).
The word “conspiracy” does not appear anywhere in Plaintiffs' amended complaint. Thus, the amended complaint itself does not put Defendants on notice that Plaintiffs are asserting this claim. For that reason alone, Plaintiffs' conspiracy claim as to Defendant Konycki cannot proceed. Even if this were not the case, however, the factual allegations in Plaintiffs' complaint fall short of pleading any plausible conspiracy claim against Defendant Konycki.
Moving Defendants concede, for the purposes of this motion to dismiss, that Plaintiffs pleaded a plausible excessive force claim against Defendant Kerschner. Plaintiffs do not, however, plead enough facts to show that Defendants Konycki and Kerschner acted in concert with the specific intent to violate Plaintiffs' rights. The allegation that Defendant Konycki handed Defendant Kerschner a can of pepper spray, without more, does not demonstrate the necessary intent to form the basis of a plausible conspiracy claim.
2. Plaintiffs Did Not Adequately Plead a Claim that Defendant Konycki Failed to Intervene in Defendant Kerschner's Use of Force
Plaintiffs suggest in their brief that Defendant Konycki's personal involvement in the use of force is established because he “did nothing to mitigate the situation.” (Doc. 38, p. 4). This claim is not pleaded in the amended complaint.
Plaintiffs are correct that, corrections officers like Defendant Konycki, have “a duty to take reasonable steps to protect a victim from another officer's use of excessive force.” If an officer, “fails or refuses to intervene when a constitutional violation such as an unprovoked beating takes place in his presence, the officer is directly liable under Section 1983.” Plaintiffs do not plead, or even use the words “failure to intervene,” in their amended complaint. Even if they had, however, the amended complaint does not contain any factual allegation that suggests Defendant Konycki had a reasonable opportunity to intervene in Defendant Kerschner's unprovoked use of force. Nothing in the amended complaint suggests that Defendant Konycki had knowledge of Defendant Kerschner intent to use the pepper spray without provocation, and Plaintiffs do not allege whether Defendant Konycki was present when the use of force occurred.
Smith v. Mensinger, 293 F.3d 641, 650 (3d Cir. 2002).
Id. (quoting Byrd v. Clark, 783 F.2d 1002, 1007 (11th Cir. 1986).
3. Plaintiffs Did Not Adequately Plead that Defendant Konycki Was Personally Involved in the Use of Force
Moving Defendants argue that Defendant Konycki did not, himself, use force on any Plaintiffs. Plaintiffs do not dispute this. Thus, in the absence of any plausibly pleaded theory under which Defendant Konycki could be held liable for Defendant Kerschner's use of force, we find that Plaintiffs' Eighth and Fourteenth Amendment excessive force claims against Defendant Konycki should be dismissed.
B. The Parties Agree That All Official Capacity Claims Should be Dismissed
In the amended complaint, Plaintiffs allege that all Defendants are sued in their individual and official capacities. (Doc. 24, ¶ 1). However, the only legal claims alleged are brought against the “individual defendants.” (Doc. 24, p. 8).
“[O]fficial-capacity suits generally represent only another way of pleading an action against an entity of which an officer is an agent....” Monell v. Dep't of Soc. Servs., 436 U.S. 658, 690 n.55 (1978). Moving Defendants work for the Pennsylvania Department of Corrections. The Pennsylvania Department of Corrections is a part of the executive department of the Commonwealth of Pennsylvania. Lavia v. Pennsylvania Dept. of Corrections, 224 F.3d 190, 195 (3d Cir. 2000). Official capacity claims brought against the Moving Defendants are tantamount to claims against the Commonwealth of Pennsylvania.
Moving Defendants argue that all official capacity claims should be dismissed. Plaintiffs again clarify that they are not pursuing any claim against the Department of Corrections or the Commonwealth of Pennsylvania. (Doc. 38, p. 6).
Moving Defendants seek dismissal of any Monell-like claim. Their argument appears to be grounded in the language use in paragraph 33 of Plaintiffs' amended complaint. We construe this as an argument that any constitutional claims asserted against a government should be dismissed. Moving Defendants do not challenge whether Plaintiffs adequately pleaded the individual capacity claims against Defendants Bronsburg, Klick, and Wassel premised on a theory of supervisory liability. (Doc. 37, pp. 15-16 n.12).
Based on the agreement of the parties, we recommend that all official capacity claims as to all Defendants be dismissed.
C. Plaintiffs Pleaded A Plausible Medical Care/Conditions of Confinement Claim
In their amended complaint, Plaintiffs allege that they were sprayed in the face with pepper spray, and that it affected their eyes and lungs. (Doc. 24, ¶ 6). They allege that their cells were poorly ventilated, and that there was no running water for twelve hours after they were sprayed with pepper spray. (Doc. 24, ¶¶ 78). Plaintiffs allege that they were “in distress” and requested but were denied medical assistance or help by Defendants Konycki, Kerschner, Scott, Stockholm, and Yost. (Doc. 24, ¶ 7). When the first shift officers arrived, Plaintiffs were given medical treatment, the use of force was documented, and the jail cells were decontaminated. (Doc. 24, ¶ 10). Plaintiffs allege that, after spending twelve hours with pepper spray residue in their eyes and on their bodies, and breathing pepper spray residue from the uncirculated air in their cells, they were physically, mentally, and emotionally injured. (Doc. 24, ¶ 40).
First, Moving Defendants argue that Plaintiffs' medical care and conditions of confinement claims should be dismissed because:
PLAINTIFFS' [sic] failed to allege facts which plausibly establish that KONYCKI, SCOTT, STOCKHOLM, YOST, BRONSBURG, KLICK, or WASSEL were deliberately indifferent to his [sic] need for medical treatment- largely because his [sic] counseled Amended Complaint lacks any factual content about either the use of OC spray or the basis of MOVANTS' knowledge thereof.(Doc. 37, p. 12).
Plaintiffs' denial of medical care claims and conditions of confinement claims are premised on the inference that exposure to pepper spray is a “serious” medical need and poses a substantial risk of serious harm. Courts in the Third Circuit have acknowledged that a lay person could readily recognize that an individual exposed to pepper spray is in need of some medical assistance to alleviate the effects of the spray. Further, it seems unlikely as a matter of common sense that the odor of pepper spray would escape the notice of corrections officers doing regular rounds through a facility. Even if it did, Plaintiffs allege that they asked Defendants Konycki, Kerschner, Scott, Stockholm, and Yost for medical help. (Doc. 24, ¶ 7). Accordingly, we find that Plaintiffs have alleged sufficient facts to state a plausible claim that Moving Defendants were deliberately indifferent to a serious medical need and substantial risk of serious harm.
Passmore v. Ianello, Civ. No. 12-90, 2013 WL 625409, at *7 (W.D. Pa. Feb. 20, 2013) aff'd by 528 Fed.Appx. 144 (3d Cir. 2013)); Cummings v. Smith, Civ. No. 09-335, 2013 WL 5377376, at *2 (E.D. Pa. Sept. 25, 2013) (acknowledging that courts have held that the failure to decontaminate prisoners or otherwise provide medical treatment for prisoners exposed to pepper spray can support a constitutional claim for failure to provide adequate medical care, where the failure to treat a prisoner's condition could result in further significant injury or the unnecessary and wanton infliction of pain); Snider v. Motter, No. 4:13-CV-01226, 2016 WL 4154927 (M.D. Pa. June 2, 2016) report and recommendation adopted 2016 WL 414078 (M.D. Pa. Aug. 4, 2016).
Second, Moving Defendants argue that Plaintiffs' denial of medical care claims should be dismissed because:
PLAINTIFFS set forth no facts about how the alleged delay in being seen resulted in substantial harm. Simply put. MOVANTS note that PLAINTIFFS rely upon wholly conclusory allegations and speculation as the basis for his [sic] claim against them-and submit that the plausibility standard of Twombly/Iqbal require more.Id. at 13. We similarly find this argument is not persuasive. In their amended complaint, Plaintiffs allege that they sat in their cell following exposure to pepper spray for twelve hours. They had no access to clean air, and no access to water. As a matter of common sense, Plaintiffs would have been in some measure of physical pain due to this unmitigated exposure to pepper spray for twelve hours. Given the type of injury, the length of the delay in treatment, and the early stage of the proceedings in this case, we find that Plaintiffs have alleged a plausible denial of medical care claim.
D. Plaintiffs Should Be Granted 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 district court must permit a curative amendment, unless an amendment would be inequitable or futile. In this case, it is not clear that amendment would be futile with respect to Plaintiffs' excessive force claim against Defendant Konycki, nor is there any basis to believe that amendment would be inequitable. It is therefore recommended that Plaintiffs be granted leave to file a second amended complaint within a specified time period following partial dismissal of the amended complaint.
See Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002).
V. RECOMMENDATION
For the foregoing reasons, it is RECOMMENDED that:
(1) Moving Defendants' motion to dismiss (Doc. 36) be GRANTED in part and DENIED in part;
(2) Plaintiffs' official capacity claims against all Defendants be DISMISSED;
(3) Plaintiffs' Eighth and Fourteenth Amendment excessive force claim against Defendant Konycki be DISMISSED;
(4) All other claims be permitted to proceed;
(5) Plaintiffs be granted leave to file a second amended complaint within a specified time period after this partial dismissal; and
(6) This matter be remanded to the undersigned for further proceedings.
NOTICE OF LOCAL RULE 72.3
NOTICE IS HEREBY GIVEN that any party may obtain a review of the Report and Recommendation pursuant to Local Rule 72.3, which provides:
Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636 (b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses, or recommit the matter to the magistrate judge with instructions.