Opinion
Civil Action No. 20-200E
04-07-2021
THEODORE RIDGEWAY, Plaintiff, v. JERI SMOCK, CHCA, MIKE EDWARDS, RNS, DR. LETIZIO, DANIEL STROUP, PA, DR. HARTWELL, CAPT. CAMPBELL, SGT. BELL, CO II, SGT. PUTMAN, CO II, CO1 BUZZIO, CO1 BROMLEY, CO1 POWELL, CO1 HALL, NURSE BLAIR, SUPERINTENDENT CLARK, JOHN E. WETZEL, Secretary of Corrections, MEDICAL DEPARTMENT OF SCI ALBION, BOTH SHIFT COMMANDERS, and MS. WEBB, Unit Manager, Defendants.
District Judge Susan Paradise Baxter
Re: ECF No. 16 REPORT AND RECOMMENDATION
I. RECOMMENDATION
Plaintiff Theodore Ridgeway ("Plaintiff"), an inmate presently incarcerated at State Correctional Institution at Albion ("SCI-Albion") filed this pro se action pursuant to 42 U.S.C. § 1983, arising out of allegations that he was injured after prison officials failed to assign him bottom tier/bottom bunk status while he required the use of crutches. ECF No. 6.
Presently before the Court is the Corrections Defendants' Motion to Dismiss Complaint filed by Defendants Jeri Smock ("Smock"), Mike Edwards ("Edwards"), Capt. Campbell ("Campbell"), Sgt. Bell ("Bell"), Sgt. Putman ("Putman"), COI Buzzio ("Buzzio"), COI Bromley ("Bromley"), COI Powell ("Powell"), COI Hall ("Hall"), Nurse Blair ("Blair"), Superintendent Clark ("Clark"), John E. Wetzel ("Wetzel"), the Medical Department of SCI-Albion (the "Medical Department"), and Ms. Webb ("Webb") (collectively, the "Corrections Defendants"). ECF No. 16.
For the following reasons, it is respectfully recommended that the Motion to Dismiss should be granted in part and denied in part.
II. REPORT
A. FACTUAL AND PROCEDURAL BACKGROUND
1. Plaintiff's Allegations
In his Complaint, Plaintiff alleges that he was housed on the top tier of EA-Block at SCI-Albion. ECF No. 6 ¶ 1. On July 6, 2018, Plaintiff sought medical attention because his foot was swollen and changing colors, and he was unable to walk. Id. ¶ 3. Defendant Daniel Stroup ("Stroup"), a physician's assistant in the SCI-Albion Medical Department, told Plaintiff that he might have gout, ordered blood work and issued Plaintiff crutches. Id. ¶¶ 3, 24.
Plaintiff refers to various exhibits throughout his Complaint. See, e.g., ECF No. 6 ¶¶ 36, 39, 43, 46, 52-56. However, the exhibits that he refers to do not appear to have been provided with his Complaint or as attachments to any other filings that Plaintiff has provided to the Court.
Despite Plaintiff's use of crutches, prison officials did not transfer Plaintiff to the bottom bunk and/or bottom tier of his housing unit. Id. ¶ 6. Plaintiff points to several incidents in which prison officials were allegedly made aware of his need to be housed on the bottom tier/bottom bunk while using crutches. Plaintiff alleges that Defendants Bell and Putnam, as well as several unidentified guards, were notified by other prison officials that he needed to be housed on the bottom tier. Id. ¶¶ 7, 9, 10. In addition, Powell witnessed Plaintiff almost fall down the stairs twice between July 7 and 9, 2018, but he did not take any action to have Plaintiff transferred. Id. ¶ 8. Plaintiff also claims that he confronted Clark, the SCI-Albion Superintendent, on the EA-Block at an unspecified time, regarding his placement on the top tier. Id. ¶ 70.
On July 11, 2018, Plaintiff fell down a flight of approximately 10 stairs. Id. ¶ 11. He injured his lower back, and he was taken to the hospital for treatment. Id. Upon his return to SCI-Albion, however, prison officials still did not transfer Plaintiff to the bottom tier/bottom of his housing unit. Id. ¶¶ 15-17. Plaintiff also claims that medical personnel refused to return his crutches or provide him with a bed in the medical department. Id. ¶¶ 13-14.
Since his fall, Plaintiff claims that he has suffered from back pain, spasms, and problems with his spine. Id. ¶¶ 23, 25, 27-28, 35. He claims that the medical staff is not properly treating his symptoms, and that the medication he has been provided does not work. Id. ¶¶ 33, 40. Plaintiff also alleges that medical personnel at SCI-Albion have falsely claimed his condition is the result of a birth defect, instead of his fall. Id. ¶¶ 39, 41.
In addition, Plaintiff alleges that he was retaliated against for complaining about his back pain. Id. ¶ 29. On July 18, 2018, Plaintiff asserts that he was placed in an infirmary cell with an inmate assigned a "D-Code," who urinated on him while Plaintiff was confined to a wheelchair. Plaintiff was required to sleep on a broken bed without a mattress, despite having a back injury. Id. After Plaintiff notified medical staff that he would file a grievance, he was transferred to a different infirmary cell with a new bed. Id. ¶ 30. On July 20, 2018, Plaintiff was provided with a wheelchair. Id. ¶ 34. He was then transferred to the bottom tier/bottom bunk of his unit. Id. ¶ 47.
On September 7, 2018, Plaintiff was transported to an outside hospital for an MRI of his spine. The MRI revealed that Plaintiff was injured in the fall. Id. ¶ 37. Thereafter, Plaintiff was referred for an evaluation by a neurosurgeon. Id. ¶ 38.
2. Grievance History
Plaintiff alleges that he filed Grievance No. 749467 relative to the allegations in his Complaint on July 25, 2018. Id. ¶¶ 50, 52. Edwards provided the initial review response to this grievance on August 9, 2018, in which he upheld in part and denied in part Plaintiff's grievance. Id. ¶ 52. Plaintiff appealed this decision, and Clark remanded the grievance for additional review. Id. ¶ 52. After it was remanded for further review, Smock denied Plaintiff's grievance. Plaintiff appealed this decision twice to final review, where the decision was first upheld by Clark, followed by Chief Grievance Officer, Dorina Varner. Id. ¶¶ 54-55.
Plaintiff asserts that Edwards and Smock should not have been permitted to review his grievance because Smock oversees individuals in the medical department of whom he complained in his grievance, and because Smock is Edwards's supervisor. Id. ¶¶ 52-54. Plaintiff claims that Clark ignored his objections to their participation in the grievance process. Id. ¶ 54.
3. Plaintiff's Claims
Plaintiff claims that Defendants violated his Eighth Amendment rights. Id. at 4; Id. ¶¶ 69, 73. Plaintiff also appears to assert a claim for negligence against unspecified members of the medical staff and the "unit management team." Id. at 4; Id. ¶¶ 74-75. In his Complaint, Plaintiff additionally includes allegations relative to "retaliation," "intentional infliction of emotional distress" and "falsifing [sic] documents/reports"; however, he does not specifically plead these as separate claims in the legal claims section of his Complaint. Id. at 4; Id. ¶¶ 29-30, 41, 59.
As relief, Plaintiff requests compensatory and punitive damages, a declaration that the acts and omissions he describes in his Complaint amount to a violation of his constitutional rights, injunctive relief prohibiting any retaliatory actions, and the recovery of his costs and attorneys' fees. Id. ¶¶ 78-82.
4. Procedural History
Plaintiff lodged his Complaint in this action on July 16, 2020, without submitting a filing fee or Motion for Leave to Proceed in forma pauperis ("IFP Motion"). ECF No. 1. After the Court issued a Deficiency Order, Plaintiff requested leave to proceed in forma pauperis. ECF Nos. 2 and 3. The Court granted Plaintiff's IFP Motion on September 15, 2020, and his Complaint was filed the same day. ECF Nos. 4 and 6.
Defendants Dr. Letizio and Daniel Stroup filed an Answer to Plaintiff's Complaint on December 23, 2020. ECF No. 33.
The Corrections Defendants filed their Motion to Dismiss and Brief in Support on November 17, 2020. ECF Nos. 16 and 17. On January 27, 2021, Plaintiff filed his Response to the Corrections Defendants' Motions to Dismiss. ECF No. 38.
Dr. Amanda Hartwell has filed a separate Motion to Dismiss, to which Plaintiff's response is pending. ECF No. 31.
The Motion to Dismiss is now ripe for consideration.
B. LEGAL STANDARD
In assessing the sufficiency of a complaint pursuant to a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the Court must accept as true all material allegations in the complaint and all reasonable factual inferences must be viewed in the light most favorable to the plaintiff. Odd v. Malone, 538 F.3d 202, 205 (3d Cir. 2008). The Court, however, need not accept bald assertions or inferences drawn by the plaintiff if they are unsupported by the facts set forth in the complaint. See Cal. Pub. Employees' Retirement Sys. v. The Chubb Corp., 394 F.3d 126, 143 (3d Cir. 2004) (citing Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997)). Nor must the Court accept legal conclusions set forth as factual allegations. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). Rather, "[f]actual allegations must be enough to raise a right to relief above the speculative level." Id. (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). Indeed, the United States Supreme Court has held that a complaint is properly dismissed under Fed. R. Civ. P. 12(b)(6) where it does not allege "enough facts to state a claim to relief that is plausible on its face," id. at 570, or where the factual content does not allow the court "to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); see also Phillips v. County of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008) (finding that, under Twombly, "labels, conclusions, and a formulaic recitation of the elements of a cause of action" do not suffice but, rather, the complaint "must allege facts suggestive of [the proscribed] conduct" and that are sufficient "to raise a reasonable expectation that discovery will reveal evidence of the necessary element[s] of his claim").
Pro se pleadings, "however inartfully pleaded," must be held to "less stringent standards than formal pleadings drafted by lawyers." Haines v. Kerner, 404 U.S. 519, 520 (1972). Because Plaintiff is proceeding pro se, the Court will liberally construe his Complaint and employ less stringent standards than when judging the work product of an attorney. Erickson v. Pardus, 551 U.S. 89, 94 (2007).
C. DISCUSSION
1. Eleventh Amendment Immunity
In support of the Motion to Dismiss, the Corrections Defendants argue that the Medical Department and all claims against the Corrections Defendants in their official capacities should be dismissed based upon the application of Eleventh Amendment immunity, and because the Medical Department and persons acting in their official capacities are not "persons" subject to suit under 42 U.S.C. § 1983. ECF No. 17 at 4-6.
Plaintiff does not address this issue in his Response. ECF No. 38.
Upon review, Plaintiff's claims against the Medical Department, as well as his claims against the Corrections Defendants in their official capacities, are barred under the Eleventh Amendment. "The Eleventh Amendment bars the federal courts from entertaining suits by private parties against states, state agencies, and state officials and employees acting in their official capacities, unless the state has consented to the filing of such suit." Roach v. SCI Graterford Medical Dept., 398 F. Supp. 2d 379, 384 (E.D. Pa. 2005) (citing Edelman v. Jordan, 415 U.S. 651, 662 (1974); Benn v. First Judicial Dist. of Pa., 426 F.3d 233, 238 (3d Cir. 2005); Laskaris v. Thornburgh, 661 F.2d 23, 25-26 (3d Cir. 1981)). In applying this rule, the Medical Department is considered the state itself, or an "alter ego" of the same. Yates v. SCI Forest Medical Dept., No. 1:19-cv-0006, 2020 WL 996912, at *2 (W.D. Pa. March 2, 2020). The Commonwealth of Pennsylvania has not waived this immunity in federal court. Roach, 398 F. Supp. 2d at 384 (citing 42 C.S.A. § 8251(b)). Accordingly, all claims against the Medical Department, as well as all claims against the individual Corrections Defendants acting in their official capacities, should be dismissed.
There is an exception to Eleventh Amendment immunity for claims brought against defendants in their official capacities for prospective injunctive relief. O'Donnell v. Pa. Dep't of Corrections, 790 F. Supp.2d 289, 305 (M.D. Pa. 2011). This exception provides federal courts with the "authority to issue injunctions against state officers where there is evidence of ongoing violations of federal law and the injunction will afford a plaintiff prospective relief from the illegal state action." Id. Although Plaintiff seeks prospective injunctive relief prohibiting "negative retaliatory practices," ECF No. 6 ¶ 78, he does not identify any purported ongoing violation of federal law. Accordingly, this exception does not apply.
2. Section 1983 Claims
Section 1983 of Title 42 of the United States Code provides in part:
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 . . . .42 U.S.C. § 1983.
"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).
In his Complaint, Plaintiff claims that Defendants violated his Eighth Amendment rights. He also appears to raise potential claims under the First Amendment for retaliation, in addition to a claim for falsifying documents/reports. For the reasons that follow, the Court should dismiss these claims against Wetzel, Edwards and Smock. To the extent that Plaintiff raises a First Amendment claim and/or a claim for falsifying documents/reports, those claims should also be dismissed against the Corrections Defendants for failure to state a claim.
a. Lack of personal involvement
The Corrections Defendants argue that Plaintiff's § 1983 claims against Defendants Wetzel, Smock, Edwards, and Clark should be dismissed because Plaintiff does not sufficiently plead their personal involvement in the underlying wrongs. ECF No. 17 at 6-12. With respect to Wetzel, they argue that Plaintiff seeks to hold him liable based solely upon his position overseeing operations at SCI-Albion. Id. at 7. Because there are no allegations that Wetzel played any affirmative role in violating Plaintiff's rights, and Plaintiff does not identify any other actions or conduct on Wetzel's part, the Corrections Defendants argue that he should be dismissed. Id.
Although the Corrections Defendants also include an argument that Webb should be dismissed under the subsection relative to lack of personal involvement, their argument pertains to whether Plaintiff has sufficiently stated an Eighth Amendment claim for deliberate indifference against Webb and others. ECF No. 17 at 10-11. The Court therefore addresses Plaintiff's claims against Webb separately.
Plaintiff's allegations against Smock, Edwards, and Clark, the Corrections Defendants argue, primarily involve Plaintiff's efforts to pursue complaints and grievances at SCI-Albion. Id. at 7-8. Because mere involvement in the grievance process is insufficient for Section 1983 liability to attach, they assert that Smock, Edwards and Clark should be dismissed. Id. at 8-10.
In response, Plaintiff argues that all of the Corrections Defendants' refusal to move Plaintiff to the bottom tier exposed him to an unreasonable risk of harm. ECF No. 38 at 3. He argues that the Corrections Defendants were aware of a substantial risk of harm to Plaintiff, and they failed to respond reasonably. Id. With respect to Clark, Plaintiff argues that Clark had knowledge Plaintiff fell down the stairs and, as of July 6, 2018, also knew that Plaintiff was located on the top tier while using crutches. Id. at 3-4. Plaintiff claims that he wrote a request to staff member, which went unanswered, and that he spoke with Clark on July 7, 2019 to tell him that he was housed on the top tier with crutches. Id. at 4.
In an action pursuant to 42 U.S.C. § 1983, it is well-established that individual government defendants must have personal involvement in the alleged wrongdoing, and "may not be held liable for the unconstitutional conduct of their subordinates under a theory of respondeat superior." Barkes v. First Corr. Med., Inc., 766 F.3d 307, 316 (3d Cir. 2014), rev'd on other grounds, Taylor v. Barkes, 575 U.S. 822 (2015) (quoting Bistrian v. Levi, 696 F.3d 352, 366 (3d Cir. 2012)); see also Millbrook v. U.S., 8 F. Supp. 3d 601, 613 (M.D. Pa. 2014). "Rather, state actors are liable only for their own unconstitutional conduct." Barkes, 766 F.3d at 316.
Although supervisors cannot be held liable pursuant to a theory of respondeat superior, 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." Id. First, a supervisor may be personally liable under § 1983 if he "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. (quoting A.M. ex rel. J.M.K. Luzerne Cnty. Juvenile Det. Ctr., 372 F.3d 572, 586 (3d Cir. 2004)). Second, a supervisor-defendant is liable if he "with deliberate indifference to the consequences, established and maintained a policy, practice or custom which directly caused [the] constitutional harm." Id. (quoting A.M. ex rel. J.M.K. Luzerne Cnty. Juvenile Det. Ctr., 372 F.3d at 586).
i. Wetzel
Upon review, the Court should dismiss Plaintiff's § 1983 claims against Wetzel based upon his lack of personal involvement. Plaintiff appears to sue Wetzel solely in his supervisory capacity as Secretary of Corrections for Pennsylvania. He asserts that Wetzel is "legally responsible for the overall operation of the Department and each institution . . . including SCI-Albion," and does not include any allegations that Wetzel had any personal knowledge of, or involvement in, his housing assignment or medical treatment. ECF No. 6 at 2.
Plaintiff's Complaint does not support a claim for supervisory liability. There are no allegations that Wetzel directed others to violate Plaintiff's rights, or that he had knowledge of or acquiesced in any misconduct. In addition, Plaintiff does not claim Wetzel maintained any policy, practice, or custom that caused his harm. To the contrary, he claims that his continued placement on the top tier/top bunk occurred in violation of DOC policy. Id. ¶ 70. Because Plaintiff does not plead facts demonstrating Wetzel's personal involvement, these claims should be dismissed.
ii. Edwards, Smock and Clark
The Court should also dismiss Plaintiff's § 1983 claims against Edwards and Smock. Although Plaintiff argues that all Defendants knew that he was placed on the top tier/top bunk while using crutches but failed to act, his allegations do not support this finding with respect to Edwards and Smock. Instead, Plaintiff claims that Edwards and Smock responded to his grievance, which he filed on July 25, 2019. ECF No. 6 ¶¶ 50, 52. Because Plaintiff had already been transferred to bottom tier/bottom bunk status as of July 20, 2018, there is no indication that Edwards and Smock had prior knowledge of Plaintiff's housing situation. As such, Plaintiff's allegations against Edwards and Smock are limited to their involvement in processing his grievance.
Where the only claim is that the defendant was involved with the handling of Plaintiff's grievances and appeals, the law is well established that "the filing of a grievance, participation in 'after-the-fact' review of a grievance, or dissatisfaction with the response to an inmate's grievance does not establish the involvement of officials and administrators in any underlying constitutional deprivation." Sears v. McCoy, No. 1:17-cv-00869, 2017 WL 4012658, at *3 (M.D. Pa. Sept. 12, 2017); see also Wilson v. Horn, 971 F. Supp. 943, 947 (E.D. Pa. 1997) ("Prisoners are not constitutionally entitled to a grievance procedure and the state creation of such a procedure does not create any federal constitutional rights."). Thus, Plaintiff's claims against Edwards and Smock pursuant to § 1983 should be dismissed.
The Court should not, however, dismiss Plaintiff's § 1983 claims against Clark on this basis. Although the Correction Defendants argue that Plaintiff only implicates Clark in the grievance procedure, his Complaint is not so limited. In addition to Clark's role in considering Plaintiff's grievance, Plaintiff also specifically alleges that he confronted Clark in person about his placement on the top tier while using crutches. ECF No. 6 ¶ 70. Clark admitted that Plaintiff should be housed on the bottom tier and responded, "I would have to get with the unit management team;" however, Plaintiff was not transferred. Id. Plaintiff claims that Clark, as superintendent, oversees operations at SCI-Albion, and that he "allowed" the officers on Plaintiff's unit to keep Plaintiff on the top tier.
Construing Plaintiff's Complaint liberally, he pleads sufficient facts that, as a supervisor, Clark had knowledge of, and acquiesced in, the alleged misconduct. Accordingly, the Corrections Defendants' Motion to Dismiss should be denied as to Clark on this basis.
b. Eighth Amendment claim
The Corrections Defendants also argue that Plaintiff's Eighth Amendment claim against Webb and other Corrections Defendants should be dismissed because Plaintiff fails to allege the necessary elements for a claim of deliberate indifference pursuant to the Eighth Amendment. In support, the Corrections Defendants rely upon Spillman v. Kollman, No. 3:18-cv-1568, 2019 WL 4930141 (M.D. Pa. Oct. 7, 2019), in which the court dismissed an Eighth Amendment claim for failure to protect against a prison doctor who allegedly improperly prescribed an inmate crutches without ensuring he was housed on the bottom tier. In Spillman, the district court concluded that the inmate failed to plead sufficient facts to demonstrate the doctor's deliberate indifference where he never informed the doctor that he was housed on the upper tier, did not request a change in housing status due to his injury, did not advise the doctor of any specific risk during the period he was using crutches, and did not have a known history of difficulty using his crutches or frequent falls with his crutches. Id. at *5.
Based on the holding in Spillman, the Corrections Defendants argue that Plaintiff only alleges Webb saw him using crutches on the top tier, and that this is insufficient to establish deliberate indifference under the Eighth Amendment. ECF No. 17 at 12. The Corrections Defendants argue that Plaintiff's claim against Webb should therefore be dismissed, and that the same result should "apply [with respect] to any other Corrections Defendant[] who has only been alleged to have been aware that Plaintiff was provided with crutches while assigned to the top tier and had no knowledge of any specific issue that rendered Plaintiff incapable of safely navigating the housing unit while on crutches." Id.
In response, Plaintiff broadly argues that the Corrections Defendants' failure to move him from the top tier exposed him to an unreasonable risk of harm, that they had knowledge of a substantial risk of harm to Plaintiff, that they failed in their duty to keep him safe, and that their actions constitute deliberate indifference. ECF No. 38 at 2-5.
Under the Eighth Amendment, "[p]rison officials have a duty to provide inmates adequate food, clothing, shelter, and medical care, and must 'take reasonable measures to guarantee' their safety." Spillman, 2019 WL 4930141, at *5 (quoting Farmer v. Brennan, 511 U.S. 825, 832 (1994)). In this case, Plaintiff appears to assert an Eighth Amendment claim against the Corrections Defendants based upon their failure to prevent harm. In order to state such a claim, "an inmate must show that he is incarcerated under conditions posing a substantial risk of serious harm." Farmer, 511 U.S. at 832. To satisfy this requirement: (1) "objectively, the alleged deprivation must have been 'sufficiently serious,' in that the 'inmate must show that he is incarcerated under conditions posing a substantial risk of serious harm;' and (2) subjectively, the prison official must have had a 'sufficiently culpable state of mind' manifesting 'deliberate indifference' to the inmate's health or safety." Spillman, 2019 WL 4930141, at *5 (quoting Farmer, 511 U.S. at 832).
Upon review, the Corrections Defendants' Motion to Dismiss should be denied on this basis. Although the Corrections Defendants refer the Court to the holding in Spillman, the decision in Spillman is based upon the facts of that particular case. The Corrections Defendants proffer no substantive analysis regarding why plaintiff's allegations involving a prison doctor in Spillman are analogous to the facts in this case, or why Plaintiff's allegations here arguably fail to give rise to an Eighth Amendment claim. Moreover, other than Webb, the Corrections Defendants do not identify which specific defendants they claim should be dismissed on these grounds. Instead, the Corrections Defendants ask the Court to ascertain which individuals, if any, "had no knowledge of any specific issue that rendered Plaintiff incapable of safely navigating the housing unit while on crutches." ECF No. 17 at 12. For these reasons, the Corrections Defendants have not satisfied their burden to show that Plaintiff fails to state a claim on these grounds.
c. First Amendment retaliation claim
The Corrections Defendants also argue that Plaintiff fails to state a claim for retaliation under the First Amendment. ECF No. 17 at 12-13. The Corrections Defendants assert that Plaintiff does not include specific allegations that he engaged in any protected activity, and he has not alleged any facts in support of his claim that he suffered any adverse action as a result. Id. at 14. Instead, they argue, Plaintiff has simply offered brief, conclusory statements, which fail to state a claim for retaliation pursuant to Iqbal-Twombly. Id.
Plaintiff does not address this argument in his Response. ECF No. 38.
In order to state a prima facie retaliation claim under the First Amendment, a prisoner must plausibly allege that: (1) he engaged in constitutionally protected conduct; (2) he suffered an adverse action sufficient to deter a person of ordinary firmness from exercising his constitutional rights; and (3) the constitutionally protected conduct was a "substantial or motivating" factor for the adverse action. Rauser v. Horn, 241 F.3d 330, 333 (3d Cir. 2001).
Upon review, it is not clear whether Plaintiff is attempting to plead a retaliation claim under the First Amendment. Although Plaintiff alleges at one point that he was placed in a broken bed and in a cell with an inmate who urinated on him "out of retaliation," he does not specifically plead this claim in the "legal claims" section of his Complaint, or in identifying which federal rights he claims that Defendants violated in the Court's form Complaint. Plaintiff also does not respond to the Corrections Defendants' argument regarding this claim. ECF No. 38.
To the extent Plaintiff arguably pleads a claim for retaliation, however, any such claim should be dismissed against the Corrections Defendants because he fails to state a claim upon which relief can be granted. Although Plaintiff broadly alleges that he received his infirmary bed assignment "out of retaliation," he does not plead facts demonstrating that any of the Corrections Defendants were personally involved in this action. Beyond conclusory statements, Plaintiff also does not include any factual allegations to support a claim that his bed assignment occurred in retaliation for engaging in any protected activity. Accordingly, any such retaliation claim should be dismissed.
d. Falsifying documents/reports
Plaintiff includes allegations of falsifying documents and reports in response to the inquiry "[w]hat federal law do you claim was violated?" on the Court's form complaint. ECF No. 6 at 4. Given the lack of detail, it is not clear if Plaintiff pleads this in connection with his Eighth Amendment claim, or if he is attempting to assert a separate claim relative to falsifying documents.
To the extent Plaintiff pleads a claim of falsifying documents/report, he also fails to state a claim against the Corrections Defendants. Plaintiff does not give any indication as to what documents or reports he believes the Corrections Defendants allegedly falsified, or how the alleged falsification violated his constitutional rights, or otherwise gives rise to a cognizable claim. Therefore, any such claim should be dismissed.
Although the Corrections Defendants do not specifically brief this issue, under the Prison Litigation Reform Act, the Court has authority to dismiss claims that fail to state a claim upon which relief may be granted. See 28 U.S.C. §§ 1915A and 1915(e); 42 U.S.C. § 1997(e).
For the foregoing reasons, the Court should dismiss Plaintiff's § 1983 claims against Edwards, Smock and Wetzel. To the extent Plaintiff purports to plead a claim for First Amendment retaliation and/or falsifying documents/reports, any such claims should also be dismissed against the Corrections Defendants.
Given this conclusion, the Court should also dismiss Edwards, Smock and Wetzel from this action. To the extent Plaintiff arguably attempts to plead state law tort claims of negligence and/or intentional infliction of emotional distress, he does not clearly articulate such claims against Edwards, Smock or Wetzel, and he does not specifically plead any purported negligent, intentional or reckless misconduct on behalf of these Defendants. Accordingly, Plaintiff fails to state such a claim against Edwards, Smock or Wetzel, and they should be dismissed.
D. CONCLUSION
For the foregoing reasons, the Court should grant in part and deny in part the Corrections Defendants' Motion to Dismiss, ECF No. 16. Plaintiff's claims against Defendants Wetzel, Edwards, Smock and the Medical Department of SCI-Albion should be dismissed. In addition, Plaintiff's claims against the Corrections Defendants in their official capacities should be dismissed. To the extent Plaintiff asserts claims for First Amendment retaliation and/or falsifying documents or reports, those claims should also be dismissed. The Motion to Dismiss should be denied with respect to all other relief.
"If a complaint is vulnerable to Rule 12(b)(6) dismissal, a district court must permit a curative amendment, unless an amendment would be inequitable or futile." Phillips v. Cty of Allegheny, 515 F.3d 224, 236 (3d Cir. 2008). Therefore, Plaintiff should be permitted to amend his Complaint, as appropriate.
In accordance with the Magistrate Judges Act, 28 U.S.C. § 636(b)(1), and Local Rule 72.D.2, the parties are permitted to file written objections in accordance with the schedule established in the docket entry reflecting the filing of this Report and Recommendation. Objections are to be submitted to the Clerk of Court, United States District Court, 700 Grant Street, Room 3110, Pittsburgh, PA 15219. Failure to timely file objections will waive the right to appeal. Brightwell v. Lehman, 637 F.3d 187, 193 n. 7 (3d Cir. 2011). Any party opposing objections may file their response to the objections within fourteen (14) days thereafter in accordance with Local Civil Rule 72.D.2. Dated: April 7, 2021
Respectfully submitted,
/s/ Maureen P . Kelly
MAUREEN P. KELLY
UNITED STATES MAGISTRATE JUDGE cc: The Honorable Susan Paradise Baxter,
United States District Judge
Theodore Ridgeway
FS-3189
SCI-Albion
10745 Route 18
Albion, PA 16475-0001
All counsel of record via CM/ECF.