Cunningham v. Doe

• Decision Date: 13 August 2012
• Docket Number: CIVIL ACTION NO. 3:12-CV-0934
• Parties: BRIAN M. CUNNINGHAM, SR., Plaintiff v. JOHN DOE, et al., Defendants
• Court: U.S. District Court — Middle District of Pennsylvania

BRIAN M. CUNNINGHAM, SR., Plaintiff

v.JOHN DOE, et al., Defendants

CIVIL ACTION NO. 3:12-CV-0934

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

Dated: August 13, 2012

(Judge Caputo)

(Magistrate Judge Blewitt)

REPORT AND RECOMMENDATION

I. BACKGROUND.

On May 18, 2012, Plaintiff Brian M. Cunningham, Sr., currently an inmate at SCI-Huntingdon, filed, pro se, this instant civil rights action pursuant to 42 U.S.C. § 1983. (Doc. 1). Plaintiff attached a Motion for Appointment of Counsel to his Complaint. (Id., pp. 4-5). Plaintiff also filed Motion for Leave to Proceed in forma pauperis. (Doc. 2).

In his original form Complaint, Plaintiff averred that, on November 25, 2010, while he was playing basketball in the prison gym at the Dauphin County Prison ("DCP"), he slipped and fell in a puddle of water on the gym floor that was allegedly the result from a leaking roof and poor ventilation system. (Doc. 1, p. 2). He alleged that the slip and fall resulted in injuries to his left hip down through his left leg into his left foot. (Id.). Based on these facts, Plaintiff averred an Eighth Amendment denial of medical care claim and seemingly a negligence claim against the eight (8) Defendants employed by DCP. (Doc. 1).

On May 25, 2012, we issued an Order denying Plaintiff's Motion for Appointment of Counsel. (Doc. 7). Subsequently, on May 29, 2012, we issued an Order directing Plaintiff tofile an Amended Complaint within fifteen (15) days of the Order date for the following reasons: (1) failure to comply with Rule 8(a) due to his failure to identify the particular conduct of the named Defendants that was alleged to have harmed the Plaintiff; (2) failure to properly allege a constitutional claim under 42 U.S.C. § 1983 due to failure to allege personal involvement of any of the Defendants; and (3) failure to state his Eighth Amendment denial of medical care claim because he did not allege any of the Defendants acted with deliberate indifference to his serious medical need. (Doc. 8).

On June 12, 2012, Plaintiff filed a 13-page handwritten Amended Complaint alleging violations of the Fifth, Eighth, Ninth and Fourteenth Amendments, intentional infliction of emotional distress, and negligence. (Doc. 12). The Court has jurisdiction over Plaintiff's §1983 civil rights action pursuant to 28 U.S.C. §1331 and §1343(a).

In his original Complaint, Plaintiff indicated that he filed grievance at DCP and that the grievance process was completed. However, Plaintiff also indicated that there was not a grievance procedure available at DCP. (Doc. 1, p. 1, ¶ II).¹ In his Amended Complaint, Plaintiff states that he filed a grievance at DCP on July 24, 2011, and that it was sent toDefendant Warden John Doe, and that it " followed to procedure even thoe (sic) at the time there wasn't one available at Dauphin County Prison to try and solve the problem." (Doc. 12, p. 7, ¶'s 29 & 32). Plaintiff also states that Defendant Warden "did nothing to help solve the problem." (Id.). Therefore, it appears that Plaintiff has not exhausted all of his available administrative remedies with DCP.²

We will now screen Plaintiff's Amended Complaint as we are obliged to do in accordance with the PLRA.³ See Abdul-Akbar v. McKelvie, 239 F. 3d 307, 314 (3d Cir. 2001); Banks v. County of Allegheny, 568 F.Supp.2d 579, 589 (W.D. Pa. 2008).

II. STANDARDS OF REVIEW.

1. PLRA

As stated, the Plaintiff has filed an application to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. (Doc. 2). The Prison Litigation Reform Act of 1995,⁴ (the "PLRA"), obligates the Court to engage in a screening process when a prisoner wishes to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. Specifically, Section 1915(e)(2), which was created by § 805(a)(5) of the Act, provides:

(2) Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that (A) the allegation of poverty is untrue; or (B) the action or appeal (i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief.

2. 42 U.S.C. § 1983

In a § 1983 civil rights action, the Plaintiff must prove the following two essential elements: (1) that the conduct complained of was committed by a person acting under color of state law; and (2) that the conduct complained of deprived the Plaintiff of rights, privileges or immunities secured by the law or the Constitution of the United States. Parratt v. Taylor, 451 U.S. 527 (1981); Kost v. Kozakiewicz, 1 F. 3d 176, 184 (3d Cir. 1993). Further, Section 1983 is not a source of substantive rights. Rather, it is a means to redress violations of federal law by state actors. Gonzaga Univ. v. Doe, 536 U.S. 273, 284-85 (2002). See also Holocheck v.Luzerne County Head Start, Inc., 385 F. Supp. 2d 491, 498-499 (M. D. Pa. 2005); Slater v. Susquehanna County, 613 F. Supp. 2d 653, 660 (M.D. Pa. 2009) (citations omitted); Stankowski v. Farley, 487 F. Supp. 2d 543, 550 (M.D. Pa. 2007) ("only those who act under color of state law are liable to suit under section 1983."). "In order to satisfy the second prong [of a §1983 civil rights action], a Defendant does not have to be a state official, but can also be held liable as a state actor." Slater v. Susquehanna County, 613 F. Supp. 2d at 660(citations omitted).

It is well-established that personal liability under section 1983 cannot be imposed upon a state official based on a theory of respondeat superior. See, e.g., Rizzo v. Goode, 423 U.S. 362 (1976); Hampton v. Holmesburg Prison Officials, 1546 F.2d 1077, 1082 (3d Cir. 1976); Parratt, supra. It is also well-settled in the Third Circuit that personal involvement of defendants in alleged constitutional deprivations is a requirement in a § 1983 case and that a complaint must allege such personal involvement. Id. Each named defendant must be shown, through the complaint's allegations, to have been personally involved in the events or occurrences upon which Plaintiff's claims are based. Id. As the Court stated in Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1998):

A defendant in a civil rights action must have personal involvement in the alleged wrongs . . . . [P]ersonal involvement can be shown through allegations of personal direction or of actual knowledge and acquiescence. Allegations of participation or actual knowledge and acquiescence, however, must be made with appropriate particularity. (Citations omitted).

A civil rights complaint must state time, place, and responsible persons. Id. Courts have also held that an allegation seeking to impose liability on a defendant based on supervisory status, without more, will not subject the official to section 1983 liability. See Rode, 845 F.2dat 1208.

The Court uses the same standard to screen a complaint under the PLRA as it does for a 12(b)(6) motion to dismiss. See Banks v. County of Allegheny, 568 F.Supp.2d at 588; O'Connell v. Sobina, 2008 WL 144199 (W.D. Pa.).

3. MOTION TO DISMISS

In Reisinger v. Luzerne County, 712 F.Supp. 2d 332, 343-344 (M.D. Pa. 2010), the Court stated:

The Third Circuit Court of Appeals recently set out the appropriate standard applicable to a motion to dismiss in light of the United States Supreme Court's decisions Bell Atlantic Corp. v. Twombly, 550 U.S. 433 (2007), and Ashcroft v. Iqbal, --- U.S. ----, 129 S.Ct. 1937 (2009). "[T]o survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true to 'state a claim that relief is plausible on its face.' " Iqbal, 129 S.Ct. at 1949 (citing Twombly, 550 U.S. at 570). The Court emphasized that "only a complaint that states a plausible claim for relief survives a motion to dismiss." Id. at 1950. Moreover, it continued, "[d]etermining whether a complaint states a plausible claim for relief will ... be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. (citation omitted). McTernan v. City of York, 577 F.3d 521, 530 (3d Cir.2009). The Circuit Court discussed the effects of Twombly and Iqbal in detail and provided a road map for district courts presented with a motion to dismiss for failure to state a claim in a case filed just a week before McTernan, Fowler v. UPMC Shadyside, 578 F.3d 203 (3d Cir.2009).

[D]istrict courts should conduct a two-part analysis. First, the factual and legal elements of a claim should be separated. The District Court must accept all of the complaint's well-pleaded facts as true, but may disregard any legal conclusions. [Iqbal, 129 S.Ct. at 1949.] Second, a District Court must then determine whether the facts alleged in the complaint are sufficient to show that the plaintiff has a "plausible claim for relief." Id. at 1950. In other words, a complaint must do more than allege a plaintiff's entitlement to relief. A complaint has to "show" such an entitlement with its facts. See Philips [v. Co. of Allegheny], 515 F.3d [224,] 234-35 [ (3dCir.2008) ]. As the Supreme Court instructed in Iqbal, "[w]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not 'show[n]'-'that the pleader is entitled to relief.' " Iqbal, 129 S.Ct. at 1949. This "plausibility" determination will be "a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id.

Fowler, 578 F.3d at 210-11.

The Circuit Court's guidance makes clear that legal conclusions are not entitled to the same deference as well-pled facts. In other words, "the court is 'not bound to accept as true a legal conclusion couched as a factual allegation.' " Guirguis v. Movers Specialty Services, Inc., No. 09-1104, 2009 WL 3041992, at *2 (3d Cir. Sept. 24, 2009) (quoting Twombly, 550 U.S. at 555) (not precedential).

III. ALLEGATIONS OF AMENDED COMPLAINT (DOC. 12).

In his Amended...