Montez Bowens v. John Wetzel, et al

Filing

NOT PRECEDENTIAL PER CURIAM OPINION Coram: AMBRO, GREENAWAY JR. and SCIRICA, Circuit Judges. Total Pages: 8. BLD-060. Bowens' motion for appointment of counsel is denied.

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BLD-060

Date Filed: 01/04/2017

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 16-3036
___________
MONTEZ M. BOWENS,
Appellant
v.

JOHN WETZEL; KLOPOTOSKI; MICHAEL WENEROWICZ; SCOTT MILLER;
KERI MOORE; AMANDA WEST; DORINA VARNER; JAMES BARNACLE; KERI
CROSS; GEORGE ONDREJKA; JAY LANE; LURAL HARRY; JEFFREY BAKER;
J.W. SPAGNOLETTI; A. FLAIM; M. COX; GOBERWIRE; J. BROWN; ROTH;
POLLARD; ROBISON; TAYLOR CRANE; M. KNAPP; MIRABAL; ROZNICH; A.
JONES; MEJAS; POINTDEXTER; S. WANAMAKER; T. FERGUSON; ZABRESKY;
SHARRER; BLAKELY; G.E. SMITH; LAUVARIA; MATUES; HARRIS; JAMES;
RIVERA; NETTLES; DAY; WEBSTER; HORNE; PENA; PATTON; T. GRENEWICH;
R. DEGIDEO; S. KARPINSKI; WENDY SHAYLOR; STACY O'MARA; J. TERRA; J.
YODIS; J. LUQOIS, J. DAY, MARY CANINO; DR. P. BRATTON; DR. MARTINEZ;
DR. FIX; A. MACALLENDER; F. REGAN; C. FLISZAR; ROBIN LEWIS; THOMAS;
LARRY LUDWIG; ALLISON RANSOME, Employees of the Department of
Corrections
____________________________________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(E.D. Pa. No. 2-14-cv-02689)
District Judge: Honorable Thomas N. O’Neill, Jr.
____________________________________
Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B) or
Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
December 1, 2016
Before: AMBRO, GREENAWAY, JR. and SCIRICA, Circuit Judges
(Filed: January 4, 2017)

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_________
OPINION*
_________
PER CURIAM
Montez M. Bowens appeals the District Court’s order dismissing his amended
complaint for failure to state a claim upon which relief could be granted. His appeal also
arguably encompasses the District Court’s order granting summary judgment in favor of
two defendants. We will summarily affirm both orders.
In May 2014, Bowens filed a civil rights complaint against several defendants
associated with his incarceration at SCI-Graterford. He subsequently amended the
complaint. The amended complaint is lengthy and discursive, covering a wide range of
unrelated subjects and events, but the main allegations concern Bowens’ perception that
he was subject to sexual abuse and harassment at Graterford, that the prison staff
retaliated against him for protected activity related to his complaints of abuse and
harassment, that he was denied access to adequate medical care for his mental health
issues, and that the prison staff discriminated against him on the basis of disability. In an
order entered June 15, 2016, the District Court granted a motion to dismiss filed by those
defendants designated as “the Graterford defendants”—essentially, the state employees
working at SCI-Graterford who Bowens alleges were involved in abuse, harassment, and

*

This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
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retaliation directed at him. In an order entered June 23, 2016, the District Court granted
the summary judgment motion of the remaining defendants, Drs. Bratton and Martinez,
medical contractors who allegedly were deliberately indifferent to Bowens’ serious
medical needs. Bowens filed a timely notice of appeal, which he amended a few days
later.
Our review of the District Court’s dismissal order is plenary. Huertas v. Galaxy
Asset Mgmt., 641 F.3d 28, 32 (3d Cir. 2011). “To survive a motion to dismiss, a
complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to
relief that is plausible on its face.’ 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.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (quoting and citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556, 570 (2007)).
“Determining whether a complaint states a plausible claim to relief will . . . be a contextspecific task that requires the reviewing court to draw on its judicial experience and
common sense.” Id. at 679. We may summarily affirm a District Court’s order if the
appeal presents no substantial question, see 3d Cir. LAR 27.4; I.O.P. 10.6, and we may
rely on any ground that the record supports, see Hughes v. Long, 242 F.3d 121, 122 n.1
(3d Cir. 2001).
A pro se plaintiff’s pleadings are liberally construed. See Dluhos v. Strasberg, 321
F.3d 365, 369 (3d Cir. 2003). But even under that relaxed standard, there is no
substantial question that Bowens’ complaint failed to state a claim, largely for the reasons
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explained by the District Court. See Fantone v. Latini, 780 F.3d 184, 193 (3d Cir. 2015)
(holding that a pro se complaint must still meet Iqbal’s plausibility standard).
We agree with the District Court that Bowens’ amended complaint does not state
any claim under the Americans with Disabilities Act (“ADA”). Among other issues,
Bowens has sued state employees in their individual capacities, not any “public entity” as
the statute requires. See 42 U.S.C. § 12132 (“Subject to the provisions of this subchapter,
no qualified individual with a disability shall, by reason of such disability, be excluded
from participation in or be denied the benefits of the services, programs, or activities of a
public entity, or be subjected to discrimination by any such entity.” (emphasis added));
42 U.S.C. § 12131 (defining “public entity” as (a) any State or local government; (b) any
department, agency, special purpose district, or other instrumentality of a State or States
or local government; and (c) the National Railroad Passenger Corporation, and any other
commuter authority). Moreover, the District Court could have properly followed the
holdings of those circuits which have concluded that there is no individual damages
liability under Title II of the ADA, which provides an additional basis to affirm the
dismissal of this claim. See Garcia v. S.U.N.Y. Health Scis. Ctr. of Brooklyn, 280 F.3d
98, 107 (2d Cir. 2001); Alsbrook v. City of Maumelle, 184 F.3d 999, 1005 n.8 (8th Cir.
1999) (en banc).
We also agree that Bowens’ amended complaint did not adequately plead any
constitutional claims under 42 U.S.C. § 1983, substantially for the reasons set out in the
District Court’s opinion. In opposition to affirmance on appeal, though, Bowens raises
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several arguments concerning the District Court’s § 1983 analysis. First, he argues that
the District Court failed to consider the entire record. The District Court’s opinion,
however, belies that contention, as it is clear that the Court was aware of and considered
the voluminous exhibits included with the amended complaint. See, e.g., Mem., D. Ct.
Doc. No. 79 at 5 n.10 (“Although plaintiff’s amended complaint, with its attachments is
quite lengthy, plaintiff’s allegations remain insufficiently specific to support a plausible
claim that many of the Graterford defendants had the requisite level of personal
involvement in the claimed violation of plaintiff’s constitutional rights.”). An
independent review of the amended complaint and its exhibits confirms that, even
considering the attachments as part of the complaint, it fails to state any constitutional
claim upon which relief could be granted.
Second, Bowens makes two related procedural arguments: that the District Court
did not rule on his pending motions, and that it on the Graterford defendants’ motion to
dismiss before his time had elapsed to respond to Drs. Bratton and Martinez’s motion for
summary judgment. Bowens appears to view his opposition to the defendants’ motions
as pending motions that the District Court did not explicitly decide. Of course, however,
the District Court decided the arguments in Bowens’ opposition brief when it granted the
Graterford defendants’ motion to dismiss. As for the timing argument, Bowens had
already responded to Drs. Bratton and Martinez’s motion for summary judgment when
the District Court ruled on the Graterford defendants’ motion to dismiss. The Graterford
defendants’ motion to dismiss was also fully briefed before the District Court issued its
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dismissal order. The timing of the District Court’s rulings did not deny Bowens any
opportunity to set forth his arguments.
Third, Bowens argues that the District Court erred in dismissing his Eighth
Amendment deliberate indifference claims to the extent that they relied on the Prison
Rape Elimination Act and other policies. But as the District Court correctly concluded,
Bowens may not attempt to enforce statutes or policies that do not themselves create a
private right of action by bootstrapping such standards into a constitutional deliberate
indifference claim. Under the Eighth Amendment as interpreted in the federal courts, a
prison official acts with deliberate indifference only if he or she “knows of and disregards
an excessive risk to inmate health or safety.” See Farmer v. Brennan, 511 U.S. 825, 837
(1994). It is under that constitutional standard that Bowens failed to plead sufficient
factual matter to state a claim against those officials whom he charges as deliberately
indifferent to sexual harassment and the mental anguish he alleges he suffered.
Fourth, Bowens makes two arguments about the legal standard that the District
Court applied in dismissing his constitutional claims. Those arguments, which are
essentially two sides of the same coin, are: (1) that the District Court failed to appreciate
that a plaintiff need only plead sufficient facts to put defendants on fair notice of the
claims against them, and (2) that heightened pleading is not required. Contrary to
Bowens’ contention, however, it is evident that the District Court cited and applied the
correct legal standard. See Mem., D. Ct. Doc. No. 79 at 3 n.8 (citing, among other cases,
Ashcroft v. Iqbal). And an independent review of the amended complaint confirms that
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Bowens has not pleaded sufficient facts to allege the elements of each of the claims that
he seeks to assert.
Finally, although Bowens’ notices of appeal do not refer explicitly to the District
Court’s summary judgment ruling, it is arguable that certain statements in Bowens’
filings indicate an intention to appeal from the order granting summary judgment in favor
of Drs. Bratton and Martinez. See Sulima v. Tobyhanna Army Depot, 602 F.3d 177, 184
(3d Cir. 2010) (“[W]e can exercise jurisdiction over orders not specified in the Notice of
Appeal if: ‘(1) there is a connection between the specified and unspecified orders; (2) the
intention to appeal the unspecified order is apparent; and (3) the opposing party is not
prejudiced and has a full opportunity to brief the issues.’”) (citation omitted). To the
extent Bowens intended to appeal the summary judgment ruling as well, his appeal fails
to persuade us substantially for the reasons set out in the District Court’s opinion.
After Bowens’ grievance record was produced, the District Court granted
summary judgment in favor of Drs. Bratton and Martinez on the ground that Bowens
failed to exhaust his administrative remedies. See Woodford v. Ngo, 548 U.S. 81, 84
(2006) (“[P]roper exhaustion of administrative remedies is necessary” to satisfy the
Prison Litigation Reform Act’s exhaustion requirement for civil rights suits against
prison officials.). Bowens had argued in the District Court that there was not a grievance
process available to him as a result of a prison policy that set out a different procedure for
immediately reporting instances of sexual abuse and harassment, and that did not require
the additional use of the usual prison grievance process. As the District Court observed,
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however, the prison policy that Bowens cited—Department Policy DC-ADM 008—was
announced on March 31, 2014, which is after the grievances at issue in Bowens’
complaint were filed and after the relevant events set out in Bowens’ amended complaint.
When Bowens filed the grievances at issue here, an earlier version of another prison
policy—DCM-ADM 804—required that Bowens pursue the appeals process for
grievances related to sexual abuse or harassment. We agree with the District Court’s
conclusion that, based on the record before the District Court, Bowens did not exhaust his
administrative remedies as set out in the policy which was in effect during the relevant
time period.
Consequently, for the above reasons and for the reasons set forth in the District
Court’s opinions, we will summarily affirm the District Court’s judgment. See 3d Cir.
LAR 27.4; I.O.P. 10.6. Bowens’ motion for the appointment of counsel is denied. See
Tabron v. Grace, 6 F.3d 147, 155 (3d Cir. 1993).

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