CEPHAS v. GEORGE W. HILL CORRECTION FACILITY et al
MEMORANDUM AND ORDER THAT THE DEFENDANTS' MOTION TO DISMISS, DOCKET NO. 24 , GRANTED, AND PLAINTIFF'S COMPLAINT IS DISMISSED WITHOUT PREJUDICE; AND THE COURT REQUESTS COUNSEL FOR PLAINTIFF PURSUANT TO 28 U.S.C. 1915(e)(1). THE CLERK IS DIRECTED TO FORWARD THIS CASE TO THE PRO SE PRISONER CIVIL RIGHTS PANEL FOR CONSIDERATION. SIGNED BY HONORABLE LOUIS H. POLLAK ON 7/11/11. 7/12/11 ENTERED AND COPIES MAILED TO PRO SE AND E-MAILED.(ti, )
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
DARREN L. CEPHAS,
GEORGE W. HILL CORRECTIONAL
FACILITY, et al.,
MEMORANDUM & ORDER
Darren Cephas, an in forma pauperis and pro se litigant, has filed two § 1983
claims arising from his incarceration at George W. Hill Correctional Facility in Delaware
County, Pennsylvania (“the Prison”). Am. Compl., Docket No. 19. The first claim is for
deliberate indifference to his medical needs. Am. Compl. at 1–2. The second claim is for
retaliation. Am. Compl. at 3. The defendants’ motion to dismiss is currently before the
court. Docket No. 24. For the following reasons, the motion to dismiss will be granted
with leave to amend, and the court will request that counsel be appointed to represent
In his amended complaint, Cephas alleges that The GEO Group, Inc. (“GEO”)—a
private company that provides medical services to inmates at the Prison—was indifferent
to his medical needs because: (1) his repeated requests for medical attention went
unanswered; (2) he was not given emergency attention on a night when he had a high
fever; (3) he never received bandages to cover his infected calf; and (4) his medication
was stopped abruptly. Am. Compl. at 1–2. Cephas further alleges that in retaliation for
the deliberate indifference claim he filed, Bruce St. Claire in the Prison’s business office
improperly withdrew funds from Cephas’s inmate account. Am. Compl. at 3.
Motion to Dismiss Standard
In order to survive a motion to dismiss for failure to state a claim, a complaint
need only include “‘a short and plain statement of the claim showing that the pleader is
entitled to relief,’ in order to ‘give the defendant fair notice of what the . . . claim is and
the grounds upon which it rests.’” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)
(quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). Thus plaintiffs must include
“sufficient factual matter . . . to ‘state a claim to relief that is plausible on its face.’”
Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 570). The
court will liberally construe Cephas’s allegations because he is a pro se plaintiff.
Erickson v. Pardus, 551 U.S. 89, 94 (2007). Further, Cephas will be granted leave to
amend “unless amendment would be inequitable or futile.” Grayson v. Mayview State
Hosp., 293 F.3d 103, 114 (3d Cir. 2002).
Eighth Amendment Claim
Cephas alleges in his amended complaint that GEO was indifferent to his medical
needs. Am. Compl. at 1–3. First, he alleges that he filed a medical request because his
calf muscle was infected, but got no response. Am. Compl. at 1–2. Cephas then
submitted grievances, which also went unanswered. Am. Compl. at 1. This delay “[led]
up to worse conditions.” Id. Cephas further alleges that other inmates who had infections
were getting “the same results.” Id. Second, Cephas alleges that on or about December
14, 2007, he pushed the emergency button in his cell for over three hours with no
response from the guards. Id. By the time officers arrived, Cephas had passed out,
sustained injuries to his head, urinated on himself, and had a temperature of 104EF. Id.
Third, Cephas alleges that when he asked for bandages, a nurse required him to submit a
written request; at that point, his infection was leaking blood and pus. Am. Compl. at 2.
In lieu of bandages, Cephas wrapped his calf in “ripped bed sheets and toilet paper.” Id.
Fourth, Cephas alleges that his medication was stopped abruptly because the prescription
had run out. Id.
“[D]eliberate indifference to serious medical needs of prisoners constitutes the
‘unnecessary and wanton infliction of pain’ proscribed by the Eighth Amendment.”
Estelle v. Gamble, 429 U.S. 97, 104 (1976) (citation omitted). Deliberate indifference is
established when “the official knows of and disregards an excessive risk to inmate health
or safety; the official must both be aware of facts from which the inference could be
drawn that a substantial risk of serious harm exists, and he must also draw the inference.”
Farmer v. Brennan, 511 U.S. 825, 837 (1994).
The deliberate indifference standard is met under various circumstances, the most
relevant to this case include: (1) “[w]here prison authorities deny reasonable requests for
medical treatment . . . and such denial exposes the inmate to undue suffering or the threat
of tangible residual injury;” (2) “where knowledge of the need for medical care [is
coupled with] . . . intentional refusal to provide that care;” and (3) where “necessary
medical treatment is delayed for non-medical reasons.” Monmouth Cnty. Corr. Inst.
Inmates v. Lanzaro, 834 F.2d 326, 346 (3d Cir. 1987) (internal quotation marks and
citations omitted). Moreover, because GEO is not an individual and because § 1983
liability will not arise from the doctrine of respondeat superior, the plaintiff must allege
that his constitutional rights were violated as a result of an institutional policy or custom.
See Monell v. Dep’t of Soc. Servs. of New York, 436 U.S. 658, 691, 694 (1978).
In this case, even assuming that Cephas has made allegations which would
establish deliberate indifference on the part of the individual prison officials, he has not
made an allegation that GEO maintains a policy or custom that contributed to an alleged
§ 1983 violation. For example, Cephas alleges that he had an infection which prompted
him to file medical requests and grievances, but he received no response from GEO. But
he does not allege that GEO maintained a policy or custom of being unresponsive to
medical requests, with the exception of his conclusory statement: “During that time there
was [sic] other inmates infected getting the same results throughout the prison.” Am.
Compl. at 1. Also, Cephas alleges that when he saw a prison nurse, she told Cephas that
he needed to put in a request for bandages. He does not allege, however, what GEO’s
policy regarding bandage distribution was or whether it constituted deliberate
indifference. Accordingly, Cephas’s amended complaint will be dismissed with leave to
amend because it is conceivable that Cephas will be able to cure the deficiencies in his
Cephas alleges that in response to his Eighth Amendment claim, an individual in
the prison’s business department withdrew money from Cephas’s inmate account more
frequently than permitted under 28 U.S.C. § 1915(b)(2);1 the withdrawals were to pay the
filing fee Cephas incurred from the Eighth Amendment claim. Am. Compl. at 3. The
retaliation claim is deficient in details, it reads in its entirety:
The retaliation claim on this complaint is the buisness [sic] department. the
[sic] claim is not based on allegations and it is a violation of the first
amendment right. Every thing [sic] is in the paper work [sic] from receipts.
The person that was in that department is Bruce St. Claire.
“A prisoner alleging retaliation must show (1) constitutionally protected conduct,
(2) an adverse action by prison officials sufficient to deter a person of ordinary firmness
from exercising his constitutional rights, and (3) a causal link between the exercise of his
constitutional rights and the adverse action taken against him.” Mitchell v. Horn, 318
F.3d 523, 530 (3d Cir. 2003) (internal quotation marks omitted). Here, Cephas has a
“constitutional right to petition the Government for redress of [his] grievances, which
includes a reasonable right of access to the courts.” Hudson v. Palmer, 468 U.S. 517, 523
A prisoner proceeding as an in forma pauperis plaintiff is required to pay a filing
fee to the court; instead of making an up-front payment, the filing fee is paid in monthly
installments from the prisoner’s inmate account. 28 U.S.C. § 1915(b)(2).
In its current form, Cephas’s pleading cannot withstand a 12(b)(6) motion because
it sets out insufficient facts to substantiate the elements of the claim. Cephas does not
make any specific factual allegations about how much money was withdrawn from his
inmate account, when the withdrawals occurred or why the withdrawals were improper.
Absent such allegations, the Defendants have not been given “fair notice of what the . . .
claim is and the grounds upon which it rests.’” Twombly, 550 U.S. at 555 (quoting
Conley, 355 U.S. at 47). Thus, the court will dismiss the retaliation claim with leave to
Appointment of Counsel
Cephas requested appointment of counsel on December 15, 2010, and Magistrate
Judge M. Faith Angell denied the request without prejudice on December 23, 2010. This
request and denial occurred after Cephas’s original complaint had been dismissed with
leave to amend. As noted above, the court will now dismiss the amended complaint, but
will again grant leave to amend. Because it is apparent that (1) Cephas’s lawsuit has
“arguable merit in fact and law,” but (2) he is unable to draft adequate pleadings, the
court will refer this matter to the Pro Se Prisoner Civil Rights Panel for consideration.2
When deciding whether to appoint counsel, the Third Circuit requires district
courts to first determine whether the case has “arguable merit in fact and law,” and then
assess factors including: “(1) the plaintiff’s ability to present his or her own case; (2) the
difficulty of the particular legal issues; (3) the degree to which factual investigation will
be necessary and the ability of the plaintiff to pursue investigation; (4) the plaintiff’s
capacity to retain counsel on his or her behalf; (5) the extent to which a case is likely to
turn on credibility determinations; and (6) whether the case will require testimony from
expert witnesses.” Cuevas v. United States, No. 10-2412, 2011 WL 1303447, at *2 (3d
Cir. Apr. 6, 2011) (citing Tabron v. Grace, 6 F.3d 147, 155–57 (3d Cir. 1993)). At a
AND NOW, this _11_ day of July 2011, IT IS HEREBY ORDERED as follows:
(1) The Defendants’ motion to dismiss, Docket No. 24, is GRANTED, and
Plaintiff’s complaint is DISMISSED without prejudice; and
(2) the court requests counsel for Plaintiff pursuant to 28 U.S.C. § 1915(e)(1). The
Clerk is directed to forward this case to the Pro Se Prisoner Civil Rights Panel for
BY THE COURT:
_/s/_Louis H. Pollak_
minimum, factors (1) through (4) all weigh in favor of appointing counsel.
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