Gordon v. Scarborough et al

Filing 10

MEMORANDUM OPINION. Signed by Judge Leonard P. Stark on 3/15/13. (mdb)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
THOMAS GORDON,
Plaintiff,
Civ. No. 12-1057-LPS

V.

JAMES SCARBOROUGH, et al.,
Defendants.

Thomas Gordon, James T. Vaughn Correctional Center, Smyrna, Delaware, ProSe Plaintiff.

MEMORANDUM OPINION

March 15, 2013
Wilmington, Delaware

I.

INTRODUCTION
PlaintiffThomas Gordon ("Plaintiff'), filed this action pursuant to 42 U.S.C. § 1983

alleging violations of his constitutional rights.' Plaintiff, an inmate, is housed at the James T.
Vaughn Correctional Center ("VCC") in Smyrna, Delaware. He appears prose and has been
granted leave to proceed in forma pauperis. (D .I. 4) The Court proceeds to review and screen
the Complaint pursuant to 28 U.S.C. § 1915 and§ 1915A.

II.

BACKGROUND
Plaintiff alleges violations of his rights under the First, Fourth, Eighth, and Fourteenth

Amendments of the United States Constitution as well as violations ofhis rights under the
Religious Land Use and Institutionalized Persons Act ("RLUIPA"), 42 U.S.C. §§ 2000cc et seq.
(D.I. 1, ~~57, 61) Plaintiffreceived a write-up and was sent to isolation on May 18,2012. (!d.
at~

1) Two days later, Plaintiffwas placed on a suicide watch. (!d.

attended a disciplinary hearing, pled guilty, and was sanctioned. (!d.

at~

2) The next day, he

at~

3)

On May 22, 2012, Plaintiff engaged in a heated discussion with mental health workers,
became enraged, and used his handcuffs to injure himself. (!d.

at~~

4-5) Plaintiff was taken to

the infirmary and then to a cell where he was placed on four-point restraints for four hours. (!d.
at~~

6-8) Plaintiff was taken off the suicide watch on June 4, 2012, transferred to the Security

Housing Unit ("SHU") on June 5, 2012, and placed in an isolation cell. (!d.

at~~

9-12) Plaintiff

was advised by two correctional officers that Defendant Deputy Warden Scarborough

'Pursuant to 42 U.S.C. § 1983, a plaintiff must allege that some person has deprived him
of a federal right, and that the person who caused the deprivation acted under color of state law.
See West v. Atkins, 487 U.S. 42, 48 (1988).
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("Scarborough") had placed Plaintiff on "strip cell status" until further notice. (/d. at 13) On
June 7, 2012, Scarborough advised Plaintiff that he had placed him on "strip cell status" due to
Plaintiffs continuing to "play this mental health game." (!d. at ,-r 17) Scarborough told Plaintiff
that there was nothing wrong with him and that "from now on" Scarborough would "personally
handle any 'outbursts"' by placing Plaintiff on strip cell status or twenty-four hour restraints until
Plaintiff"learned his lesson." (!d.) Plaintiff remained on "strip cell status for twenty-one days,
from June 5, 2012 until June 27, 2012. (/d. at ,-r 60)
While on "strip cell status," Plaintiff was allowed to have a mattress from 10:00 PM
until 8:00AM, although the times varied and, on some occasions, he was not provided a mattress
until 11:00 PM. (!d. at ,-r 19) On June 10, 2012, Plaintiff was awakened at 6:00AM to return his
mattress, per orders of Scarborough. (!d. ,-r 20) Plaintiff protested and asked to speak to the shift
commander. (!d.) He was taken to the interview room and told he would be placed in twentyfour hour mechanical restraints and housed in the observation room by order of Defendant Major
Brennan ("Brennan") for "making us wake him up at home about a f-ing mattress." (!d. at

,-r,-r 21, 48, 49) The room had constant illumination and the floor was covered with hair. (!d. at
~

43) After twenty-four hours, Plaintiff was returned to his cell where he remained on "strip cell

status." (!d. at ,-r,-r 22-25)
Plaintiff alleges that the cell was cold, and he was deprived of "decent" sleep because of
blanket and mattress restrictions. (!d. at ,-r 38) In addition, correctional officers would bang on
the cell door, causing Plaintiff to miss even more sleep. (!d. at ,-r 46) Plaintiff alleges that he was
not allowed out for recreation and was only permitted to shower three times per week. (!d. at

2

~

45) He was only allowed the use of soap, toothpaste, a toothbrush, and a washcloth during

shower time. (!d. at ~ 50) This caused Plaintiff to eat with dirty hands because utensils were
removed from his food tray. (!d.

at~

51) Toilet paper was not allowed in the cell and he

received it only upon request, but no soap was provided to Plaintiff following his use of the
bathroom. (Id.

at~~

53, 54) Finally, Plaintiff complains that, because he was not allowed to

have his Qur' an or proper attire while on strip cell status, he was unable to offer prayer
"properly" for three weeks straight. (!d.

at~

55)

Plaintiff wrote letters to several individuals, including Defendants Brennan, Deputy
Warden Pierce ("Pierce"), Scarborough, and Warden Phelps ("Phelps"), seeking removal from
the "strip cell status" and questioning its legality. (!d.

at~

26) Plaintiff also sought a remedy

through the prison's grievance procedure, but his grievances were returned as non-grievable by
Defendants Cpl. Dutton ("Dutton") and Lt. Welcome ("Welcome"). (Id.

at~~

28-33, 42, 56)

Plaintiff was informed that only Pierce or Phelps could override Scarborough's order, so he again
wrote to Scarborough, Pierce, and Phelps, but received no responses. (Id.

at~~

34-36) In

addition, neither Pierce nor Phelps, tried to intervene. (!d. at ~ 41)
Plaintiff seeks injunctive relief in the form a transfer to the Sussex Correctional
Institution ("SCI") in Georgetown, Delaware, declaratory judgment, and compensatory and
punitive damages. (!d.

III.

at~~

1-12)

LEGAL STANDARDS
This Court must dismiss, at the earliest practicable time, certain in forma pauperis and

prisoner actions that are frivolous, malicious, fail to state a claim, or seek monetary relief from a
defendant who is immune from such relief. See 28 U.S.C. § 1915(e)(2) (informapauperis

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actions); 28 U.S.C. § 1915A (actions in which prisoner seeks redress from governmental
defendant); 42 U.S.C. § 1997e (prisoner actions brought with respect to prison conditions). The
Court must accept all factual allegations in a complaint as true and take them in the light most
favorable to a prose plaintiff. See Erickson v. Pardus, 551 U.S. 89, 93 (2007); Phillips v.

County ofAllegheny, 515 F.3d 224, 229 (3d Cir. 2008). Because Plaintiff proceeds prose, his
pleading is liberally construed and his Complaint, "however inartfully pleaded, must be held to
less stringent standards than formal pleadings drafted by lawyers." Erickson, 551 U.S. at 94
(internal quotation marks omitted).
An action is frivolous if it "lacks an arguable basis either in law or in fact." Neitzke v.

Williams, 490 U.S. 319, 325 (1989). Under 28 U.S.C. § 1915(e)(2)(B)(i) and§ 1915A(b)(l), a
court may dismiss a complaint as frivolous if it is "based on an indisputably meritless legal
theory" or a "clearly baseless" or "fantastic or delusional" factual scenario. Neitzke, 490 at 32728; see also Wilson v. Rackmill, 878 F.2d 772, 774 (3d Cir. 1989); Deutsch v. United States, 67
F .3d 1080, 1091-92 (3d Cir. 1995) (holding frivolous a suit alleging that prison officials took
inmate's pen and refused to give it back).
The legal standard for dismissing a complaint for failure to state a claim pursuant to
§ 1915(e)(2)(B)(ii) and§ 1915A(b)(l) is identical to the legal standard used when ruling on Rule
12(b)(6) motions. See Tourscher v. McCullough, 184 F.3d 236, 240 (3d Cir. 1999). However,
before dismissing a complaint or claims for failure to state a claim upon which relief may be
granted pursuant to the screening provisions of28 U.S.C. §§ 1915 and 1915A, the Court must
grant Plaintiff leave to amend his complaint, unless amendment would be inequitable or futile.

See Grayson v. Mayview State Hasp., 293 F.3d 103, 114 (3d Cir. 2002).

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A well-pleaded complaint must contain more than mere labels and conclusions. See
Ashcroft v. Iqbal, 556 U.S. 662 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007). When

determining whether dismissal is appropriate, the Court conducts a two-part analysis. See
Fowler v. UPMC Shadyside, 578 F.3d 203,210 (3d Cir. 2009). First, the factual and legal

elements of a claim are separated. See id. The Court must accept all of the complaint's wellpleaded facts as true, but may disregard any legal conclusions. See id. at 210-11. The
assumption of truth is inapplicable to legal conclusions or to "[t]hreadbare recitals of the
elements of a cause of action supported by mere conclusory statements." Iqbal, 556 U.S. at 678.
Second, the Court must determine whether the facts alleged in the complaint are sufficient to
show that the plaintiff has a "plausible claim for relief." Fowler, 578 F.3d at 211. In other
words, the complaint must do more than allege the plaintiff's entitlement to relief; rather, it must
"show" such an entitlement with its facts. !d. A claim is facially plausible when its factual
content allows the Court to draw a reasonable inference that the defendant is liable for the
misconduct alleged. See Iqbal, 556 U.S. at 678. The plausibility standard "asks for more than a
sheer possibility that a defendant has acted unlawfully." !d. "Where a complaint pleads facts
that are 'merely consistent with' a defendant's liability, it 'stops short of the line between
possibility and plausibility of'entitlement to relief."' !d. (quoting Twombly, 550 U.S. at 570).
IV.

DISCUSSION
A.

Grievances

Plaintiff complains that Welcome and Dutton did not properly address the grievance he
filed. The filing of prison grievances is a constitutionally protected activity. See Robinson v.
Taylor, 204 F. App'x 155, 157 (3d Cir. Nov. 7, 2006) (not published). To the extent that

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Plaintiffbases his claims upon his dissatisfaction with the grievance procedure or denial ofhis
grievances, the claims fail because an inmate does not have a "free-standing constitutional right
to an effective grievance process." Woods v. First Carr. Med., Inc., 446 F. App'x 400, 403 (3d
Cir. Aug. 18,2011 (citing Flick v. Alba, 932 F.2d 728, 729 (8th Cir. 1991)). Notably, the denial
of grievance appeals does not in itself give rise to a constitutional claim as Plaintiff is free to
bring a civil rights claim in District Court. See Winn v. Department ofCorr., 340 F. App'x 757,
759 (3d Cir. July 28, 2009) (citing Flick, 932 F.2d at 729).
To the extent that Plaintiff sues Phelps, Pierce, Brennan and Scarborough because they
did not respond to his letters, the claim fails because participation in the after-the-fact review of a
grievance is not enough to establish personal involvement for a § 1983 claim. See, e.g., Brooks
v. Beard, 167 F. App'x 923, 925 (3d Cir. Feb. 14, 2006) (allegations that prison officials and

administrators responded inappropriately to inmate's later-filed grievances do not establish the
involvement of those officials and administrators in underlying deprivation); see also Wilson v.

Horn, 971 F.Supp. 943,947 (E.D. Pa. 1997), aff'd, 142 F.3d 430 (3d Cir. 1998) (prison officials'
failure to respond to inmate's grievance does not state constitutional claim).
Plaintiff cannot maintain a constitutional claim based upon his perception that his
grievances were not properly processed, that they were denied, or that the grievance process is
inadequate. Therefore, the Court will dismiss the grievance claims against Welcome, Dutton,
Phelps, and Scarborough as frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B) and§ 1915A(b)(l).

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B.

Respondeat Superior

Plaintiff complains that Phelps and Pierce did not respond to his letters and remove him
from "strip cell status." It appears that Plaintiff names Phelps and Pierce as Defendants based
upon their supervisory positions.
"A defendant in a civil rights action must have personal involvement in the alleged
wrongs to be liable, and cannot be held responsible for a constitutional violation which he or she
neither participated in nor approved .... " Baraka v. McGreevey, 481 F.3d 187,210 (3d Cir.
2007) (internal quotation marks and citations omitted). "Personal involvement can be shown
through allegations of personal direction or of actual knowledge and acquiescence." Rode v.

Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988). In order to establish liability for deprivation
of a constitutional right, a party must show personal involvement by each defendant. See Brito v.

United States Dep 't ofJustice, 392 F. App'x 11, 14 (3d Cir. Aug. 18, 201 0) (citing Iqbal, 556
U.S. at 677; Rode, 845 F.2d at 1207).
"Because vicarious liability is inapplicable to § 1983 suits, a plaintiff must plead that
each Government-official defendant, through the official's own individual actions, has violated
the Constitution." Iqbal, 556 U.S. at 676. In Iqbal, the Supreme Court emphasized that "[i]n a
§ 1983 suit - here masters do not answer for the torts of their servants -the term 'supervisory

liability' is a misnomer. Absent vicarious liability, each Government official, his or her title
notwithstanding, is only liable for his or her own misconduct." Iqbal, 556 U.S. at 677. "Thus,
when a plaintiff sues an official under § 1983 for conduct 'arising from his or her superintendent
responsibilities,' the plaintiff must plausibly plead and eventually prove not only that the
official's subordinates violated the Constitution, but that the official by virtue of his own conduct

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and state ofmind did so as well." Dodds v. Richardson, 614 F.3d 1185, 1198 (10 1h Cir. 2010).
The factors necessary to establish a § 1983 violation will vary with the constitutional provision at
issue. Id.
Under pre-Iqbal Third Circuit precedent, "[t]here are two theories of supervisory
liability," one under which supervisors can be liable if they "established and maintained a policy,
practice or custom which directly caused [the] constitutional harm," and another under which
supervisors can be liable if they "participated in violating plaintiff's rights, directed others to
violate them, or, as the person[s] in charge, had knowledge of and acquiesced in [their]
subordinates' violations." Santiago v. Warminster Twp., 629 F.3d 121, 129 n.5 (3d Cir. 2010)
(internal quotation marks omitted). "Particularly after Iqbal, the connection between the
supervisor's directions and the constitutional deprivation must be sufficient to demonstrate a
plausible nexus or affirmative link between the directions and the specific deprivation of
constitutional rights at issue." I d. at 130.
The Third Circuit has recognized the potential effect that Iqbal might have in altering the
standard for supervisory liability in a § 1983 suit but, to date, has declined to decide whether
Iqbal requires narrowing of the scope of the test. See Santiago, 629 F.3d at 130 n.8; see also
Argueta v. United States Immigration and Customs Enforcement, 643 F.3d 60 (3d Cir. 2011)
("To date, we have refrained from answering the question of whether Iqbal eliminated- or at
least narrowed the scope of- supervisory liability because it was ultimately unnecessary to do so
in order to dispose of the appeal then before us."). Hence, it appears that, under a supervisory
theory ofliability, and even in light of Iqbal, personal involvement by a defendant remains the

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touchstone for establishing liability for the violation of a plaintiff's constitutional right. 2 See

Williams v. Lackawanna Cnty. Prison, 2010 WL 1491132, at *5 (M.D. Pa. Apr. 13, 2010).
Facts showing personal involvement of the defendant must be asserted; such assertions
may be made through allegations of specific facts showing that a defendant expressly directed the
deprivation of a plaintiff's constitutional rights or created such policies where the subordinates
had no discretion but to act in a fashion which actually produced the alleged deprivation; e.g.,
supervisory liability may attach ifthe plaintiff asserts facts showing that the supervisor's actions
were "the moving force" behind the harm suffered by the plaintiff. See Sample, 885 F.2d at
1117-18; see also Iqbal, 556 U.S. at 677-87; City of Canton v. Harris, 489 U.S. 378 (1989).
Plaintiff provides no facts describing how Phelps and Pierce allegedly violated his
constitutional rights, that they expressly directed the deprivation of his constitutional rights, or
that they created policies wherein subordinates had no discretion in applying them in a fashion
other than the one which actually produced the alleged deprivation. In short, Plaintiff has alleged
no facts to support personal involvement by Phelps or Pierce. Accordingly, the Court will
dismiss as frivolous all claims against them pursuant to 28 U.S.C. § 1915(e)(2)(B) and
§ 1915A(b)(1).
C.

Injunctive Relief

In Paragraph 1 of the Prayer for Relief, Plaintiff seeks transfer to the SCI. The Delaware

2

'"Supervision' entails, among other things, training, defining expected performance by
promulgating rules or otherwise, monitoring adherence to performance standards, and responding
to unacceptable performance whether through individualized discipline or further rulemaking."
Sample v. Diecks, 885 F .2d 1099, 1116 (3d Cir. 1989). "For the purpose of defining the standard
for liability of a supervisor under § 1983, the characterization of a particular aspect of
supervision is unimportant." !d. at 1116-17.

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Supreme Court has recognized that prison officials have discretion to house inmates at the
facilities they choose. See Walls v. Taylor, 2004 WL 906550 (Del. 2004) (table) (citing

Brathwaite v. State, No. 169, 2003 (Del. Dec. 29, 2003)). Furthermore, the United States
Supreme Court has held that an inmate has no due process right to be incarcerated in a particular
institution, whether it be inside or outside the state of conviction. See Olim v. Wakinekona, 461
U.S. 238, 251 (1983). The injunctive relief Plaintiff seeks is unavailable to him. Therefore, the
Court will strike the paragraph 1 of the Prayer for Relief.

D.

Reguest for Counsel

Plaintiff seeks counsel on the grounds that: (1) he cannot afford to hire an attorney;
(2) his imprisonment and housing in SHU greatly limits his ability to litigate; (3) the issues are
complex; (4) a lawyer would assist Plaintiff in locating witnesses, presenting evidence, and
cross-examining witnesses; (5) he has made repeated, unsuccessful attempts to retain counsel;
and (6) counsel would serve the best interests of justice in this case. (D.I. 5)
A pro se litigant proceeding in forma pauperis has no constitutional or statutory right to
representation by counsel. 3 See Brightwell v. Lehman, 637 F.3d 187, 192 (3d Cir. 2011); Tabron

v. Grace, 6 F.3d 147, 153 (3d Cir. 1993). However, representation by counsel may be
appropriate under certain circumstances, after a finding that a plaintiff's claim has arguable merit
in fact and law. See Tabron, 6 F.3d at 155.
After passing this threshold inquiry, the court should consider a number of factors when
assessing a request for counsel. Factors to be considered by a court in deciding whether to

3

See Mallardv. United States Dist. Courtfor the S. Dist. oflowa, 490 U.S. 296 (1989)
(stating§ 1915(d)- now§ 1915(e)(1)- does not authorize federal court to require an unwilling
attorney to represent an indigent civil litigant, as operative word in statute is "request.").
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request a lawyer to represent an indigent plaintiff include: (1) the merits of the plaintiff's claim;
(2) the plaintiff's ability to present his or her case considering his or her education, literacy,
experience, and the restraints placed upon him or her by incarceration; (3) the complexity of the
legal issues; (4) the degree to which factual investigation is required and the plaintiff's ability to
pursue such investigation; (5) the plaintiff's capacity to retain counsel on his or her own behalf;
and (6) the degree to which the case turns on credibility determinations or expert testimony. See

Montgomery v. Pinchak, 294 F.3d 492, 498-99 (3d Cir. 2002); Tabron, 6 F.3d at 155-56. The list
is not exhaustive, nor is any one factor determinative. Tabron, 6 F.3d at 157.
After reviewing Plaintiff's request, the Court concludes that the case is not so factually or
legally complex that requesting an attorney is warranted. To date, the filings in this case
demonstrate Plaintiff's ability to articulate his claims and represent himself. In these
circumstances, the Court will deny without prejudice to renew Plaintiff's request for counsel.
(D.I. 5)

V.

CONCLUSION

For the above reasons, the Court will dismiss all grievance claims and all claims against
Phelps, Pierce, Welcome, and Dutton as frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B) and
§ 1915A(b)(l), and will strike Paragraph 1 ofthe Prayer for Relief.
Plaintiff will be allowed to proceed against: (1) Scarborough on the "strip cell status"
claim and the denial of religious materials claim; and (2) Brennan on the twenty-four hour
restraint claim.
An appropriate Order follows.

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