Opinion
No. 765 C.D. 2012
11-16-2012
Ronald Stockton, Appellant v. Commonwealth of Pennsylvania, Department of Corrections, Marirosa Lamas, Superintendent at SCI Rockview, B. Thompson, Former Superintendent SCI Rockview, R. Marsh, Deputy Superintendent SCI Rockview, T. Miller, CCPM at SCI Rockview, L. Eatton, Security Captain SCI Rockview, and R. Vance, Security Lieutenant at SCI Rockview
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE SIMPSON
Ronald Stockton (Stockton), representing himself, appeals from an order of the Court of Common Pleas of Centre County (trial court) that sustained the preliminary objections filed by the Department of Corrections on behalf of the named appellees (collectively, DOC). Upon review, we affirm in part, and vacate and remand in part for further proceedings as set forth below.
Appellees, all of whom hold or held positions at SCI-Rockview, are: Marirosa Lamas, Superintendent; B. Thompson, Former Superintendent; R. Marsh, Deputy Superintendent; T. Miller, CCPM; L. Eatton, Security Captain; and, R. Vance, Security Lieutenant.
I. Background
Stockton is an inmate currently incarcerated at SCI-Smithfield. Stockton filed suit in the trial court seeking monetary damages for alleged violations of his constitutional rights and tortious conduct while incarcerated at SCI-Rockview. Specifically, Stockton filed a series of amended complaints, alleging claims of "gross negligence, unprofessional conduct, supervisor liability, outrageous and reckless behavior," violations of Title 37 Pa. Code §91.2, improper training, willful misconduct and equal protection violations. See Tr. Ct., 3/23/12, Slip Op. at 3. Stockton also asserted a "failure to protect" claim under the Eighth Amendment of the United States Constitution, raised pursuant to 42 U.S.C. §1983.
Stockton admitted in his pleadings that prison officials found him guilty of assaulting another inmate. See Am. Compl., ¶10. The victim of Stockton's assault required over 50 stiches on his face. Id. As a result, Stockton received 13½ months of confinement in the restricted housing unit.
While Stockton remained in restricted housing, the brother of his victim entered the institution. Stockton avers that prison officials, namely Security Captain Eatton and Security Lieutenant Vance, warned the brother that Stockton was re-entering the general prison population and that the brother might also be a target of violence. Stockton asserts that, by contrast, DOC took no steps to protect him from possible retaliation, such as warning him of the victim's brother's presence once he was returned to general population.
Shortly thereafter, Stockton was "assaulted after being attacked" presumably by his victim's brother. Third Am. Compl. ¶31. Stockton blames DOC for not protecting him against this assault, and predicates his claims upon the responsibility he alleges DOC bears for the attack.
DOC filed preliminary objections asserting: (1) sovereign immunity as to the negligence and/or intentional tort claims; (2) failure to state a claim for equal protection violations; (3) failure to exhaust administrative remedies; (4) failure to allege sufficient involvement of six of the eight named appellees; and, (5) potential dismissal under Section 6602(e)(2) of the Prison Litigation Reform Act, 42 Pa. C.S. §6602(e)(2) (PLRA).
In its five-page opinion and order, the trial court addressed each of these issues in turn. Specifically, the trial court held the tort claims are barred by sovereign immunity. The trial court agreed Stockton did not state a viable equal protection claim, and "merely made conclusory allegations in contending his rights were violated when Respondents failed to protect him from another inmate." Tr. Ct., Slip Op. at 4. The trial court also concluded Stockton did not allege exhaustion of administrative remedies in any of his complaints. As it found the claims legally insufficient, the trial court agreed the matter should be dismissed under the PLRA. With the exception of preliminary objection (4) above, the trial court sustained the preliminary objections, and dismissed the amended complaints with prejudice.
As the third Amended Complaint avers personal involvement against all of the named appellees, mooting that objection, and it is not raised on appeal, we need not address it here.
Stockton appealed, and subsequently filed a Concise Statement of Matters Complained of on Appeal pursuant to Pa. R.A.P. No. 1925(b). In response to Stockton's Rule 1925(b) Statement, the trial court incorporated its initial opinion.
After the case was submitted on briefs pursuant to this Court's order dated September 17, 2012, Stockton sent a "reply brief." We did not consider it, and strike the brief as a post-submission communication pursuant to Pa. R.A.P. 2501.
II. Discussion
Before the trial court, DOC demurred to the equal protection violation claim, asserted sovereign immunity as to the tort claims, asserted failure to exhaust administrative remedies as to the state and federal claims, and argued the case must be dismissed under the PLRA.
Appellate review of a trial court's order sustaining preliminary objections and dismissing a complaint is limited to determining whether the trial court committed an error of law or an abuse of discretion. Podolak v. Tobyhanna Twp. Bd. of Supervisors, 37 A.3d 1283 (Pa. Cmwlth. 2012); Joloza v. Dep't of Transp., 958 A.2d 1152 (Pa. Cmwlth. 2008). When considering preliminary objections this Court must consider as true all well-pled material facts set forth in the complaint and all reasonable inferences that may be drawn from those facts. Mulholland v. Pittsburgh Nat'l Bank, 405 Pa. 268, 174 A.2d 861 (1961). Preliminary objections should be sustained only in cases where it is clear and free from doubt that the facts pled are legally insufficient to establish a right to relief. Werner v. Zazyczny, 545 Pa. 570, 681 A.2d 1331 (1996). As such review raises a question of law, our scope of review is plenary. Podolak.
A. Sovereign Immunity
The Commonwealth is immune from suit in tort, and this immunity extends "to employees of the Commonwealth who are not high public officials ... [when they act] within the scope of their employment and not in an intentionally malicious, wanton or reckless manner." McCool v. Dep't of Corr., 984 A.2d 565, 570 (Pa. Cmwlth. 2009) (quoting Walter v. Com., 350 A.2d 440, 442 (Pa. Cmwlth. 1976)). The trial court held that Stockton's tort claims are barred by sovereign immunity and that Stockton did not claim any valid exception to the immunity doctrine.
Sovereign immunity is waived in certain limited circumstances. See 42 Pa. C.S. §8522. This Court explained the waiver as follows:
[a] party may proceed against a Commonwealth agency if it can establish that damages would have been recoverable under common law (or a statute creating a cause of action) had the injury been caused by a defendant not protected by sovereign immunity. 42 Pa. C.S. §8522(a). Additionally, the alleged negligent act must fall within one of the specifically enumerated exceptions provided by the legislature.See LaChance v. Michael Baker Corp., 869 A.2d 1054, 1057 (Pa. Cmwlth. 2005).
Stockton does not assert that immunity is waived; rather, he asserts the doctrine is inapplicable here because the officials were not acting within the scope of their employment. Stockton avers the following:
13. Capt. Eatton and Lt. Vance's negligence and malice [sic] intent, as well as outrageous and reckless behavior was a total disregard to Plaintiff[']s safety when Defendants failed to so much as notify Plaintiff that they feared for Plaintiff[']s safety,
nor did they protect Plaintiff from danger and the[y] possessed facts which gave them reason to believe of such danger, which is why they called victim[']s brother to security before Plaintiff was released from the RHU [restricted housing unit]. After incident Defendants informed Plaintiff they did not feel the need to protect Plaintiff because Plaintiff has shown that he could protect himself in incident prior.
14. Capt. Eatton, and Lt. Vance's deviation from sections A, A-1, B-1, B-10, B-14, B-22 and B-30 shows that defendants were not acting for the good of their employer and by their actions was not the kind the employee is employed to perform, and was not by a purpose to serve the master.
****
18. By Capt. Eatton, and Lt. Vance's unprofessional conduct, as well as egregious and malicious conduct could have cost Plaintiff his life or a more substantial injury than it caused, and was in fact foreseeable to Defendants before incident on 6-4-10.
19. Capt. Eatton left Plaintiff to walk around blinded to the fact that victim's brother was even in the facility, let alone the possibility of harm. Placed Plaintiff in an inhumane and unsafe environment. Lt. Vance as well.
20. Capt. Eatton and Lt. Vance acting under color of state law deprived Plaintiff of rights, privileges, and immunities guaranteed by the state statutes, as well as the Pennsylvania Constitution by their conduct. A reasonable person would have acted differently w[h]ile in the possession of facts of a dangerous situation, and failed to remedy the dangerous situation, and gross negligence to their duty to protect, and conduct.
21. On 6-2-10 Plaintiff was released to SCI-Rockview's general population without being informed of potential threat or danger to Plaintiff's safety, nor notice that victim's brother was in the facility. Plaintiff was never given an opportunity to contest weather[sic] Plaintiff felt safe being housed in general population with victim's brother, and was not afforded the same rights as victim's brother.
22. Before Plaintiff was released from [RHU] Defendants Supt Lamas, Supt. Assistant Rackavan, Dept Thompson, Dept Marsh, CCPM Miller, Capt. Eatton, Lt. Vance each possess facts which gave them reason to believe Plaintiff was in danger and has shown a reckless and outrageous behavior with [] negligence and malice [sic] intent as well as total disregard to Plaintiff's safety.See Third Am. Compl. ¶¶13-14, 18-22. In remaining allegations, Stockton averred the named appellees were in possession of facts that should have given them reason to believe Stockton was in jeopardy of being attacked by victim's brother such that releasing him to the general prison population constituted inhumane and unsafe conditions.
Essentially, Stockton contends that the type of conduct complained of would not be sanctioned by the named appellees' employer, and that such willful misconduct falls outside the scope of sovereign immunity. We disagree. In La Fankie v. Miklich, 618 A.2d 1145 (Pa. Cmwlth. 1992), we held that even when a Commonwealth employee acts intentionally, he is immune provided his actions are within the scope of his duties. See Williams v. Strickland, 917 A.2d 915 (Pa. Cmwlth. 2007); La Frankie, 618 A.2d at 1149, n.4 (explaining contrast between Commonwealth employees and local agency employees, as local agency employees are not entitled to immunity for malice or willful misconduct).
All of Stockton's allegations focus on the employees' duties or alleged failures to comply with those duties. As the averments do not cite specific acts outside their positions as prison officials, we conclude the defense applies to protect the named appellees here. Id. Because Stockton did not plead any exception to the doctrine, we agree with the trial court that the tort claims are barred by sovereign immunity.
B. Failure to Exhaust Administrative Remedies
Stockton alleges that DOC, "w[h]ile acting under color of state law failed to adhered [sic] to the standard of conduct of section -A, A-1, B-1, B-10, B-14, B-22, B-30 of [its] code of ethics which shows that there [sic] actions were not for the good of their employer, and was not by a purpose to serve a master." Third Am. Compl. ¶23; see also id. at ¶14. He appears to be making claims that DOC violated its own policies. The trial court sustained DOC's objection that Stockton failed to plead that he exhausted his administrative remedies. In its preliminary objection, DOC asserted that Stockton was required to seek administrative resolution under DC-ADM 804, and he did not do so.
Exhaustion of administrative remedies is a defense to actions that may be addressed through administrative means. Alleged violations of policies and similar complaints within control of the decision-makers of the grievance system are properly precluded on this ground. See Humphrey v. Dep't of Corr., 939 A.2d 987 (Pa. Cmwlth. 2007). However, claims that rise to the level of constitutional violations or other relief outside the decision-maker's authority are not. See McCray v. Dep't of Corr., 582 Pa. 440, 872 A.2d 1127 (2005) (decision-makers of internal grievance system lacked authority to consider matters of law, and cannot recalculate sentence). "Of course, it is axiomatic that the exhaustion doctrine is applicable only where there exists an adequate administrative remedy." St. Clair v. Pa. Bd. of Prob. & Parole, 493 A.2d 146 (Pa. Cmwlth. 1985). Exhaustion is not an appropriate defense to constitutional attacks. Id.
The trial court sustained the preliminary objection, citing Humphrey. The Humphrey Court held, in part, that claims are barred for failure to assert exhaustion to all administrative remedies as to claims that may be brought under the grievance system. Id. at 993. Notably, however, the Humphrey Court also recognized the exception from exhaustion for constitutional questions. Id. The trial court did not discuss the special treatment of constitutional claims under the exhaustion theory.
DOC does not allege that all of Stockton's claims may be adequately addressed by administrative means, and it declined to brief the exhaustion issue on appeal. DOC also does not identify an administrative decision from which Stockton should have appealed.
Here, there is an equal protection claim. Also, there is a possible failure to protect claim which could rise to a constitutional level and which may not be amenable to administrative relief. As it is not clear how the exhaustion doctrine applies to the facts underlying the constitutional claims, the trial court's order sustaining the preliminary objection as to exhaustion of administrative remedies is vacated as to those claims, and remanded for further proceedings.
C. Equal Protection
Turning to the constitutional claims, we agree with the trial court's conclusion that Stockton failed to state a claim for equal protection. The Pennsylvania Constitution allows a claim for equal protection coextensive with the Equal Protection Clause in the United States Constitution. Commonwealth v. Albert, 563 Pa. 133, 758 A.2d 1149 (2000); Love v. Borough of Stroudsburg, 525 Pa. 320, 597 A.2d 1137 (1991). To state an equal protection claim, Stockton must allege he received treatment different from other similarly situated individuals, and that the disparate treatment is because of his membership in a particular class. Myers v. Ridge, 712 A.2d 791 (Pa. Cmwlth. 1998) (sustaining objection to prisoner's equal protection claim); Murray v. Pittsburgh Bd. of Pub. Educ., 919 F. Supp. 838 (W.D. Pa. 1996). He must also show intentional discrimination as a member of a class, and the "[a]ssertions of intentional disparate treatment must be supported by specific factual allegations." Myers, 712 A.2d at 799.
The Equal Protection Clause of the Fourteenth Amendment to the United States Constitution provides: "No State shall ... deny to any person within its jurisdiction the equal protection of the laws." U.S. CONST. amend. XIV, §1.
Stockton did not plead that he received treatment different than that received by other similarly situated individuals as a member of a class. Uniontown Newspapers, Inc. v. Roberts, 576 Pa. 231, 839 A.2d 185 (2003) (holding equal protection claim pertains to a class, even if a class of one, and not to an individual). Stockton did not identify a class in which he claimed membership. Moreover, Stockton set forth conclusory allegations rather than the requisite factual predicate for an equal protection claim. Myers. In short, Stockton does not allege membership in a protected class; instead, he claims different treatment on an individualized basis. Murray, 919 F. Supp. at 847 (equal protection only affords an individual protection against intentional discrimination that is based upon class membership ... 'not merely that he was treated unfairly as an individual'."). As Stockton fails to set forth any of the requisite elements for an equal protection claim, the trial court properly sustained DOC's demurrer here.
D. Failure to Protect
Stockton also alleged a "failure to protect" claim under Section 1983. Specifically, he alleged "SCI-Rockview's staff controls the custody of Plaintiff and has a duty to protect Plaintiff against unreasonable risk of physical harm as well as render aid when required and negligently failed to conform to that standard of conduct, and behavior was outrageous and reckless." Third Am. Compl. ¶32. The trial court failed to analyze this claim, or account for it within its opinion.
To state a valid Section 1983 claim, Stockton must assert (1) he was denied a federal right; (2) under the color of state law. Roberts. To establish a failure to protect claim, an inmate must demonstrate that: (1) he is "incarcerated under conditions posing a substantial risk of serious harm;" and (2) the prison official acted with "deliberate indifference" to his health and safety. Glazewski v. Corzine 385 F. App'x. 83, 88 (3d Cir. 2010) (quoting Farmer v. Brennan, 511 U.S. 824, 834 (1994)). Prison officials may escape liability for deliberate indifference claims if they show they did not know of the underlying facts indicating a sufficiently substantial danger, and that they were therefore unaware of a danger, or that they knew the underlying facts but believed that the risk was insubstantial. Bistrian v. Levi, ___ F.3d ___, No. 10-3629, (3d Cir. Sept. 24, 2012). Prison officials who act reasonably cannot be found liable for failure to protect. Id.
Here, Stockton alleges DOC appellees acted under color of law in violating his right to be safe while incarcerated, and breaching their duty to protect him. Third Am. Compl. ¶¶20, 22, 31-32. Stockton further alleges that DOC was aware of the risk to his safety, and believed an altercation between himself and the victim's brother could ensue in light of the prior incident. Id. ¶¶28-30. Based on these facts, Stockton may state a colorable claim for failure to protect, depending on the degree of knowledge the DOC appellees had of the risk.
To that end, "the official must actually be aware of the existence of the excessive risk; it is not sufficient that the official should have been aware." Bistrian (quoting Beers-Capitol v. Whetzel, 256 F.3d 120, 133 (3d Cir. 2001)). Stockton contends DOC should have known of the excessive risk, as certain named appellees (Vance and Eatton) advised victim's brother of the risk Stockton may pose to him when released from the restricted housing unit. DOC appellees notified victim's brother of Stockton's presence and the prior incident to warn him of a potential threat, but they did not do the same for Stockton, indicating Stockton could handle himself. Id. at ¶¶13, 27-30. With regard to the risk posed, and the reasonableness of DOC's conduct in light of the known facts, Stockton may have pled sufficient facts to preclude a demurrer at this stage.
DOC emphasizes that an inmate has no guarantee of safety from retribution by other inmates, and that DOC cannot be liable for a provoked attack, citing Clark v. Johnson, 181 F. App'x. 606 (7th Cir. 2006), and Day v. Ravellette, 10 F. App'x. 374 (7th Cir. 2001). The cases both involve summary judgment motions, and they both involve inmate petitioners who initiated the violence at issue. In Clark, the inmate suing for failure to protect threw a book at his cellmate, to which his cellmate responded by pulling him off the bed and breaking his arm. Similarly, in Day, the inmates involved in the originating scuffle were cellmates, and the inmate suing for failure to protect initiated the altercation that became violent. Unlike the cases on which DOC relies, the facts pled in Stockton's complaints, which we must accept at this early stage of the litigation, do not indicate a provoked attack.
Even presuming the provocation here was the prior attack on the victim, we disagree with DOC that the prior attack constitutes provocation insulating DOC from liability. See Pope v. Shafer, 86 F.3d 90 (7th Cir. 1996) (reasoning that inmate has actual knowledge of impending attack when he provokes it and the risk is thus preventable by the inmate). Specifically, there is no suggestion that Stockton had knowledge of an impending attack. To the contrary, the incident may have placed DOC on notice of a foreseeable fight between Stockton and the victim's brother, which in fact ensued. The seriousness of the assault may have been foreshadowed by the prior attack leading to 50 stitches in the victim's face.
Arguably, notifying the victim's brother of Stockton's assault disregarded Stockton's safety. See Culver v. Specter, slip op. No. CV-11-2205 (M.D. Pa. Oct. 9, 2012) (denying motion to dismiss complaint against DOC officials who informed inmate that petitioner complained about him, which incited hostility against petitioner; averments may constitute deliberate indifference). To the extent Stockton can show that DOC made deliberate disclosures to victim's brother to incite harm to Stockton, he may sustain this claim. We cannot conclude as a matter of law that there are no circumstances under which relief may be appropriate. Therefore, we vacate dismissal of this claim and remand for the trial court to address the outstanding preliminary objections to this claim.
E. PLRA
The trial court was required to dismiss the case on its own motion where the complaint fails to state a cause of action. See 42 Pa. C.S. §6602(e); Smolsky v. Governor's Office of Admin., 990 A.2d 173 (Pa. Cmwlth. 2010).
Section 6602(e)(2) of the PLRA states that the court may dismiss prison conditions litigation at any time if it determines that:
[t]he prison conditions litigation is frivolous or malicious or fails to state a claim upon which relief may be granted or defendant is entitled to assert a valid affirmative defense, including immunity, which if asserted, would preclude the relief.42 Pa. C.S. § 6602(e)(2).
The gravamen of Stockton's complaint is that the prison officials did not properly protect him or notify him of an impending threat in the form of his victim's brother. This matter falls within the PLRA as prison conditions litigation. However, we do not agree that the case may be dismissed on these grounds.
Section 6601 of the PLRA defines "prison conditions litigation" as:
[a] civil proceeding arising in whole or in part under Federal or State law with respect to the conditions of confinement or the effects of actions by a government party on the life of an individual confined in prison. The term includes an appeal. The term does not include criminal proceedings or habeas corpus proceedings challenging the fact or duration of confinement...42 Pa. C.S. § 6601. --------
While the defense of sovereign immunity can provide a basis for dismissal of a prison conditions lawsuit, here, Stockton asserts constitutional claims in addition to those from which Commonwealth officials are protected. DOC did not assert any defenses to the failure to protect claim and fails to draw this Court's attention to any worthy defenses at this juncture. As analyzed above, Stockton may state a failure to protect claim. Thus, the case cannot be dismissed in its entirety under PLRA, and the trial court's order in this regard is vacated.
F. Amendment
Finally, we address Stockton's contention that the trial court abused its discretion in failing to allow him to amend his complaint, for what appears to be the fourth time. "[W]here a trial court sustains preliminary objections on the merits, it is generally an abuse of discretion to dismiss a complaint without leave to amend." Jones v. City of Phila., 893 A.2d 837, 846 (Pa. Cmwlth. 2006) (quoting Harley Davidson Motor Co. v. Hartman, 442 A.2d 284, 286 (Pa. Super. 1982)). Moreover, if a pleading can be cured by amendment, a court "must give the pleader an opportunity to file an amended complaint .... This is not a matter of discretion with the court but rather a positive duty." Id. (quoting Framlau Corp. v. Cnty. of Delaware, 299 A.2d 335 (Pa. Super. 1972)).
However, "[w]here there is no possibility of recovery under a better statement of the facts, leave to amend need not be granted." Id.; see also Guarrasi v. Scott, 25 A.3d 394 (Pa. Cmwlth. 2011). The courts are not required to permit amendment when such amendment would be futile and recovery is not possible as a matter of law. Carlino v. Whitpain Investors, 499 Pa. 498, 453 A.2d 1385 (1982).
Here, there is no possibility of recovery with regard to the tort claims. By contrast, Stockton may be able to plead sufficient facts to state an equal protection claim. Similarly, Stockton may have stated a Section 1983 failure to protect claim, which the trial court failed to address in its opinion. On remand, the trial court may consider whether any lapses in pleading the constitutional claims can be cured by amendment. Joloza.
III. Conclusion
Stockton cannot recover for the claims that sound in tort as they are barred by sovereign immunity. However, although he fails to state an equal protection claim in his current pleading, Stockton may possess sufficient facts to state such a claim if permitted to amend. Further, Stockton may have pled sufficient facts to state a colorable Section 1983 failure to protect claim, necessitating a remand.
The trial court failed to address the failure to protect claim. Therefore, we vacate and remand to the trial court to address the preliminary objections as they relate to the failure to protect claim. The trial court may consider whether any perceived shortcomings in pleading the equal protection and failure to protect claims are properly cured by amendment.
For the foregoing reasons, the trial court's order is affirmed in part, (as to sovereign immunity and the tort-based claims, and the demurrer to the equal protection claim), and vacated in part (as to preliminary objections pertaining to the Section 1983 failure to protect claim, and the propriety of leave to amend); this matter is remanded accordingly.
/s/_________
ROBERT SIMPSON, Judge ORDER
AND NOW, this 16th day of November, 2012, the Order of the Court of Common Pleas of Centre County sustaining the preliminary objections filed by the Department of Corrections and the named appellees to the amended complaint(s), and dismissing said complaints is hereby AFFIRMED IN PART, and VACATED IN PART, and this matter is REMANDED, in accordance with the foregoing opinion.
In addition, Appellant's "Reply Brief" is STRICKEN in accordance with Pa. R.A.P. 2501 as a post-submission communication, because it was filed after the case was submitted on briefs by order dated September 14, 2012.
Jurisdiction is relinquished.
/s/_________
ROBERT SIMPSON, Judge