ROSARIO v. WILLIAMS et al

Filing 24

MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE MARY A. MCLAUGHLIN ON 1/29/14. 1/30/14 ENTERED AND COPIES MAILED TO THE PLAINTIFF AND E-MAILED TO COUNSEL.(jaa, ) Modified on 1/30/2014 (jaa, ).

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

JOSE ROSARIO
v.
SETH WILLIAMS, et al.

:
:
:
:
:

CIVIL ACTION

NO. 13-1945

MEMORANDUM
McLaughlin, J.

January 29, 2014

This action arises from the prosecution of the
plaintiff for the murder of an inmate in the Philadelphia
Industrial Correction Center (“PICC”), of which he was found not
guilty.

The plaintiff, in a pro se complaint, brings claims

under 42 U.S.C. § 1983 for violations of the Fifth, Eighth, and
Fourteenth Amendments, as well as for state law torts and
violations of the Pennsylvania Constitution.

Rosario alleges

that he was placed in solitary confinement and administrative
segregation, which violated his due process rights and to be
free from cruel and unusual punishment.

He also alleges that

members of the District Attorney’s Office are responsible for
using false testimony during his prosecution.
Rosario brings claims against R. Seth Williams, the
District Attorney of Philadelphia, Lynne Abraham, the former
District Attorney, and Assistant District Attorneys John Doyle
and Edward McCann.

He also brings suit against the City of

Philadelphia, Police Officer Gregory Santamala, Police Officer

Gerald Lynch, Police Officer William Hility, John P. Delaney,
warden of the Philadelphia Detention Center, and Joyce Adams,
warden of the PICC.1
The Court considers here motions to dismiss by John P.
Delaney and Joyce Adams (the “Warden Defendants”), and by R.
Seth Williams, Lynne Abraham, John Doyle, and Edward McCann (the
“DA Defendants”), both pursuant to Federal Rule of Civil
Procedure 12(b)(6).

For the reasons that follow, the Court will

grant both the DA Defendants’ and the Warden Defendants’ motions
in their entirety.

1

Defendants the City of Philadelphia, Gerald Lynch, Gregory
Santamala, and William Hility have answered the complaint.
Rosario also named Richi Grace, a supervisor at PICC, in his
lawsuit. Counsel for the City has not yet been able to identify
a person by that name working for the Philadelphia prison
system. 1/9/14 Rule 16 Conf. Trans. 4:4-6:4. Lastly, Rosario
sued unknown City of Philadelphia police officers, unknown City
of Philadelphia prison officials, and unknown state correctional
officials.
2

Background2

I.

On October 4, 2006, inmate Lance Mears was stabbed to
death inside the PICC.

Compl. ¶ 21.

Rosario was held in

administrative segregation when the death of Lance Mears
occurred.

He was not released from administrative segregation

until he “lost a prior case he was fighting.”

1/9/14 Rule 16

Conf. Trans. 15:1-5.
Rosario was an inmate at the PICC at the time of the
murder of Lance Mears.

Id.

On October 7, 2006, Rosario was

transferred from the PICC to the Philadelphia Detention Center.
Rosario was placed into maximum security in solitary confinement
for between six and eight months.

That placement was at the

request of the Philadelphia Police Department and by order of
the Philadelphia District Attorney’s Office.

During his time

there, Rosario attended several hearings on the status of his
confinement, where he was told that he would be held in

2

The Court accepts all well-pleaded facts in the complaint
as true and draws all reasonable inferences in favor of the nonmoving party, while disregarding any legal conclusions. See
Fowler v. UPMC Shadyside, 578 F.3d 203, 210-11 (3d Cir. 2009).
As part of the Court's general practice with pro se
litigants, the Court held an on-the-record Rule 16 conference on
January 9, 2014, during which the Court allowed the plaintiff to
respond to the pending motions to dismiss and give a complete
explanation of the facts of the case. It is the Court's
practice to incorporate facts alleged by the pro se litigant
during the Rule 16 conference into the complaint.
3

administrative segregation until the detectives gave notice to
the prison and the district attorney that the investigation was
over or that he was to be charged.
Conf. Trans. 16:13-17:2.

Id. ¶ 22; 1/9/14 Rule 16

On or about November 15, 2008,3 Rosario

was arrested and charged with the murder of Lance Mears.4
Rosario alleges that the defendants, pursuant to a
conspiracy, manipulated and coached one of the prosecution’s
witnesses and then withheld that they had done so.

Compl. ¶ 23.

Carl Landsowne, the Commonwealth’s witness at Rosario’s
preliminary hearing and at Rosario’s trial, recanted his
testimony in an affidavit attached to complaint.

Carl Landsowne

Aff., ECF No. 1, at 10; 1/9/14 Rule 16 Conf. Trans. 13:2-14:4,
22:10-13.

3

2008.
4

In that affidavit, written on April 15, 2010,

Rosario also lists the date of his arrest as November 14,
Compl. at 1.

A district court may consider matters of public record in
ruling on a motion to dismiss. Sands v. McCormick, 502 F.3d
263, 268 (3d Cir. 2007). The Court notes that, based on the
public records attached to the DA Defendants’ motion to dismiss,
Rosario was already incarcerated at the time of his arrest for a
conviction of murder in the third degree in an unrelated
incident. On May 5, 2005, Rosario was arrested and charged with
two counts of murder in the third degree and related offenses.
On March 27, 2007, Rosario was convicted, and on May 24, 2007,
he was sentenced to life imprisonment for murder and to
consecutive sentences on some of the remaining charges. Thus,
during the relevant times referred to in the complaint, Rosario
was serving a life sentence in an unrelated case. See DA
Defendants’ Mot., Exs. A-B, ECF No. 6-1.
4

Landsowne avers that the statement he gave on May 5, 2009, at
Rosario’s preliminary hearing was false.

“I was forced by the

District Attorney to testify on Mr. Rosario or I myself would
[have] . . . been charged for the murder because I was the
victim[’s] cell-mate.”

Carl Landsowne Aff.

Rosario alleges

that this information proves that he did not commit the crime
against Lance Mears.

Compl. ¶ 32.

Assistant District Attorneys Doyle and McCann were
assigned to Rosario’s prosecution on April 15, 2010.

Prior to

that date, the defendants were made aware by Carl Landsowne that
he wanted to submit an affidavit to recant his prior statements.
“Defendants Doyle, McCann, Lynch, [and] Santamala . . . instead
of providing the truth . . . , instead threatened the witness
with criminal-charges and incarceration if he did not testify as
to his prior-testimony, or he’d be charged with first degree
murder.”

Id. ¶ 39; see also id. ¶ 30.

Rosario also alleges

that Landsowne informed the jury of the misconduct related to
the Philadelphia District Attorney’s Office and the Philadelphia
Police Department.

Id. ¶ 26.

On March 10, 2011, Rosario was transferred to SCIGraterford, housed on the death row unit, and staff was informed
that he was a pending death row inmate.

Id. ¶ 24.

Rosario was

held in administrative segregation awaiting his preliminary
5

hearing, and he was placed in and out of administrative
segregation following his preliminary hearing through the trial
“due to this case.”

1/9/14 Rule 16 Conf. Trans. 15:6-12.

Rosario was held in solitary confinement for months during this
time.

Id. at 15:17-20.
Rosario’s transfer and placement was at the direction

of the Philadelphia District Attorney’s Office because he was a
pending capital case.
14:4-21.

Id. ¶ 24; 1/9/14 Rule 16 Conf. Trans.

He also claims that the Warden Defendants failed to

follow protocol because Rosario was continually being held in
the solitary confinement unit at the county level without any
review process.

The Warden Defendants failed to address his

grievances, instead relying on orders from defendants Lynch,
Santamala, Doyle, McCann, and Abraham to keep him within
solitary confinement.

Id. ¶ 40.

On or about March 22, 2012, a jury found Rosario not
guilty.

Id. ¶ 3, 26.

Rosario claims that, as a result of his

arrest and prosecution, he was imprisoned for over six years.
Id. ¶ 4.
As a result of Rosario’s arrest, incarceration, and
trial, he and his daughter became part of a family court action.
A Custody Master at the Court of Common Pleas terminated his
custody rights to his daughter.

Id. ¶ 47.
6

Rosario states that

he suffered “[n]o injuries related to [the] event.”

He does

state, however, that he suffered “extreme physical distress and
ailments, mental pain and anguish,” and a psychological disorder
from which his recovery is questionable.

Compl. at 3 (complaint

form); see also 1/9/14 Rule 16 Conf. Trans. 15:10-16:4
(discussing psychological symptoms).

II.

Procedural History

A. The Plaintiff’s Claims
Rosario brings the following claims against the
defendants in both their official and individual capacities:
(1)

§ 1983 claims for violation of the Fifth, Eighth,

and Fourteenth Amendments:

Rosario claims that he was denied

equal protection under the Fourteenth Amendment, due process
under the Fifth and Fourteenth Amendments, and his freedom from
cruel and unusual punishment under the Eighth Amendment.
¶ 67.

Compl.

Rosario argues that his parental rights were terminated,

which constituted cruel and unusual punishment and a violation
of due process.
(2)

Id. ¶¶ 67-70.
Intentional infliction of emotional distress:

Rosario does not identify the specific conduct of the defendants
underlying this claim but states that he suffered “serious
7

mental anguish, pain and suffering, and psychological damages in
which Plaintiff is still suffering related thereto.”
¶ 74.

Compl.

The Court interprets these allegations to be related to

his prosecution and placement in solitary confinement.
(3)

Cruel and unusual punishment:

Rosario alleges

that his Eighth Amendment rights were violated because he was
unlawfully arrested, imprisoned, and prosecuted for crimes he
did not commit.

Compl. ¶ 76.

He also alleges that the

defendants “fabricate[d], manipulate[d], coach[ed] witnesses and
withheld evidence of the truth from Plaintiff in an effort to
falsely implicate and convict Plaintiff for capital murder.”
Id. ¶ 77.

Furthermore, his placement in solitary confinement

violated his due process rights as a pretrial detainee.

Id.

The Court interprets these allegations to be part of Rosario’s
§ 1983 claim alleging violations of his Eighth Amendment rights,
as well as alleging the state law claims of malicious
prosecution, abuse of process, false arrest, and false
imprisonment.
(4)

Negligence:

Rosario alleges that the defendants

failed to present evidence showing that he did not cause the
death of Lance Mears.

Furthermore, the “City of Philadelphia

Defendants” acted upon direction from the DA Defendants and “had
a[n] affirmative duty to make formal-inquiries as superiors of
8

the City of Philadelphia Prisons Department” when Rosario was
placed into solitary confinement.
(5)

Compl. ¶ 79.

Violation of public trust:

Rosario alleges that

the “City of Philadelphia Defendants” failed to notify the
relevant court officials that he has been wrongfully charged,
arrested, and imprisoned for the murder of Lance Mears based on
evidence provided by one of the prosecution witnesses.
¶ 81.

Compl.

The defendants then violated the public trust by failing

to relay that evidence of innocence.

These actions allegedly

violated several provisions of the Pennsylvania Constitution.5
Id. ¶ 82.

5

The Court is unable to find any Pennsylvania state law
claim for “violation of public trust.” Such language is
typically used to describe certain types of crimes with regard
to sentencing. See, e.g., United States v. Smith, 839 F.2d 175,
181 (3d Cir. 1988); Commonwealth ex rel. Baldwin v. Richard, 751
A.2d 647, 655 n.4 (Pa. 2000) (Castille, J., concurring and
dissenting); Commonwealth v. Dickter, 465 A.2d 1, 3 (Pa. Super
Ct. 1983). Ethical violations by government officials or
lawyers may also be considered violative of the public trust.
See, e.g., Office of Disciplinary Counsel v. Tumini, 453 A.2d
310, 313 (Pa. 1982), reinstatement granted sub nom. Matter of
Tumini, 574 A.2d 599 (Pa. 1990); Keller v. State Ethics Comm'n,
860 A.2d 659, 670 (Pa. Commw. Ct. 2004); Susquehanna Cnty. Tax
Claim Bureau v. Aliano, 803 A.2d 234, 237 (Pa. Commw. Ct. 2002).
None of those cases, however, discuss a civil cause of action
for such behavior.
Furthermore, “neither Pennsylvania statutory authority, nor
appellate case law has authorized the award of monetary damages
for a violation of the Pennsylvania Constitution.” Jones v.
City of Phila., 890 A.2d 1188, 1208 (Pa. Commw. Ct. 2006); see
9

Based on the counts listed in the complaint, as well
as the allegations presented by Rosario in his complaint and
during the on-the-record Rule 16 conference, the Court
interprets Rosario’s causes of action to be under § 1983, as
well as state law claims for negligence, malicious prosecution,
abuse of process, false arrest, false imprisonment, negligent
infliction of emotional distress, intentional infliction of
emotional distress, and civil conspiracy.6

also R.H.S. v. Allegheny Cnty. Dep't of Human Servs., Office of
Mental Health, 936 A.2d 1218, 1226 (Pa. Commw. Ct. 2007). There
is no Pennsylvania state case law that permits an action for
monetary damages based on a claimed violation of the state
constitution. Balletta v. Spadoni, 47 A.3d 183, 193 (Pa. Commw.
Ct. 2012). A plaintiff can, however, pursue injunctive and
declaratory relief under the Pennsylvania Constitution. Hall v.
Raech, No. 08-5020, 2009 WL 811503, at *6 n.13 (E.D. Pa. Mar.
25, 2009) (citing Jones, 890 A.2d at 1212 n.37). The Court has
considered Rosario’s requests for injunctive relief, and those
requests do not state a possible remedy for any state
constitutional violation.
6

Although the DA Defendants discuss Rosario’s conspiracy
claim as arising under 42 U.S.C. § 1985, nowhere in the
complaint does Rosario cite to that statute. Even construing
Rosario’s complaint liberally, the Court finds it more
appropriate to interpret Rosario’s conspiracy allegations as a
civil conspiracy claim under Pennsylvania law.
10

B. The Motions to Dismiss

1.

The Warden Defendants

The Warden Defendants have moved to dismiss Rosario’s
complaint pursuant to Rule 12(b)(6).

The Warden Defendants

argue that Rosario’s claims against them in their official
capacity fail because such a suit is properly treated as an
action against the City of Philadelphia, which is also a party
to this lawsuit.
The Warden Defendants also argue that there is no
individual capacity claim under § 1983 because there is no
respondeat superior liability and Rosario has not alleged any
specific actions by the Warden Defendants that rise to the level
of unconstitutional conduct.
Third, the Warden Defendants allege that there are no
Eighth Amendment violations because Rosario’s allegations
regarding solitary confinement do not rise to the level of an
unconstitutional condition of confinement.
Lastly, the Warden Defendants argue that Rosario’s due
process claims are deficient because he lacks a liberty interest
in remaining housed in the general population or in remaining
free from more restrictive segregated housing, such as solitary
confinement.
11

Although the Warden Defendants address Rosario’s
claims under § 1983, they do not even mention the state law
claims that Rosario brings against all defendants, such as
intentional infliction of emotional distress.

The Warden

Defendants further fail to address Rosario’s allegations of a
conspiracy.

2.

The DA Defendants

The DA Defendants have also moved to dismiss Rosario’s
complaint pursuant to Rule 12(b)(6).

First, the DA Defendants

argue that Rosario’s complaint lacks the basic specificity
required under Rule 8(a) and fails to delineate the actions of
each defendant.
Second, the DA Defendants argue that they have
absolute prosecutorial immunity against Rosario’s individual
capacity claims under § 1983 and against Rosario’s conspiracy
claims under § 1985.
Third, the DA Defendants argue that Rosario cannot
state an official capacity claim for municipal liability.
First, Assistant District Attorneys Doyle and McCann are not
policymakers and so their actions cannot subject their municipal
employer to § 1983 liability.

With regard to District Attorney

Williams and former District Attorney Abraham, the DA Defendants
12

argue that their employer, the District Attorney’s Office, is
not a “person” for purposes of § 1983 liability.

Finally, the

DA Defendants argue that Rosario has not stated any policy or
practice of the District Attorney’s Office that caused his
injuries.
Lastly, the DA Defendants argue that Rosario’s state
law claims against them should be dismissed because they are
absolutely immune.

III. Legal Standard7
A motion to dismiss filed pursuant to Federal Rule of
Civil Procedure 12(b)(6) tests the sufficiency of the complaint.
Conley v. Gibson, 355 U.S. 41, 45 (1957), abrogated in other
respects by Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007).

A

claim may be dismissed under Rule 12(b)(6) for “failure to state
a claim upon which relief can be granted.”

7

A pro se complaint, “however inartfully pleaded,” must be
held to “less stringent standards than formal pleadings drafted
by lawyers.” Haines v. Kerner, 404 U.S. 519, 520–521 (1972).
In a section 1983 action, the court must liberally construe the
pro se litigant's pleadings and “apply the applicable law,
irrespective of whether a pro se litigant has mentioned it by
name.” Higgins v. Beyer, 293 F.3d 683, 688 (3d Cir. 2002)
(quoting Holley v. Dep't of Veteran Affairs, 165 F.3d 244, 247–
48 (3d Cir. 1999)).
13

Generally, in ruling on a motion to dismiss, the court
relies on the complaint, attached exhibits, and matters of
public record, including other judicial proceedings.

Sands, 502

F.3d at 268.8
Although Rule 8 of the Federal Rules of Civil
Procedure requires only that the complaint contain “a short and
plain statement of the claim showing that the pleader is
entitled to relief” to “give the defendant fair notice of what
the . . . claim is and the grounds upon which it rests,” the
plaintiff must provide “more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action will
not do.”

Twombly, 550 U.S. at 555 (quoting Fed. R. Civ. P.

8(a)(2) and Conley, 355 U.S. at 47).

Similarly, naked

assertions devoid of further factual enhancement will not
suffice.

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing

Twombly, 550 U.S. at 557).

8

In addition to the facts alleged in the complaint, the
Court will take into account any other factual allegations or
documents that Rosario has introduced into the record by way of
his motion for appointment of counsel. The Court will also
consider any factual assertions by Rosario during the telephone
conference held on-the-record before the Court with Rosario and
defendants’ counsel on January 9, 2014. See footnote 2 of this
memorandum for further explanation of the Court’s practice with
pro se litigants.
14

Although “conclusory” or “bare-bones” allegations will
not survive a motion to dismiss, Fowler, 578 F.3d at 210, a
complaint may not be dismissed merely because it appears
unlikely that the plaintiff can prove those facts or will
ultimately prevail on the merits.

Phillips v. Cnty. of

Allegheny, 515 F.3d 224, 231 (3d Cir. 2008).
The court is required to conduct a two-part analysis
when considering a Rule 12(b)(6) motion.

First, the factual

matters averred in the complaint, and any attached exhibits,
should be separated from legal conclusions asserted.
578 F.3d at 210.

Any facts pleaded must be taken as true, and

any legal conclusions asserted may be disregarded.
211.

Fowler,

Id. at 210–

Second, the court must determine whether those factual

matters averred are sufficient to show that the plaintiff has a
“plausible claim for relief.”

Id. at 211 (quoting Iqbal, 556

U.S. at 679).
This two-part analysis is “context-specific” and
requires the court to draw on “its judicial experience and
common sense” to determine if the facts pleaded in the complaint
have “nudged [plaintiff's] claims” over the line from
“conceivable to plausible.”

Iqbal, 556 U.S. at 679–680.

“A

claim has facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable inference
15

that the defendant is liable for the misconduct alleged.”

Id.

at 678.
The Third Circuit has summarized the post-Twombly
standard as follows:

“‘[S]tating . . . a claim requires a

complaint with enough factual matter (taken as true) to suggest’
the required element.

This ‘does not impose a probability

requirement at the pleading stage,’ but instead ‘simply calls
for enough facts to raise a reasonable expectation that
discovery will reveal evidence of’ the necessary element.”
Phillips, 515 F.3d at 234 (citations omitted) (quoting Twombly,
550 U.S. at 556).

IV.

Discussion

A.

§ 1983 Claims Against the Warden Defendants
Rosario sues the Warden Defendants in their official

capacities and their individual capacities.

1.

Compl. ¶¶ 14-15.

Official Capacity

The Warden Defendants argue that claims against them
in their official capacity must fail because the City of
Philadelphia is also a party to this suit.

16

Because the Warden Defendants are wardens of prisons
in the Philadelphia prison system, the claims brought against
the Warden Defendants in their official capacity are considered
to be actions against the City of Philadelphia.

See Kentucky

v. Graham, 473 U.S. 159, 166 (1985) (“[A]n official-capacity
suit is, in all respects other than name, to be treated as a
suit against the entity . . . . It is not a suit against the
official personally, for the real party in interest is the
entity.” (emphasis omitted)); Monell v. Dep't of Soc. Servs.,
436 U.S. 658, 690 n.55 (1978) (“[O]fficial-capacity suits
generally represent only another way of pleading an action
against an entity of which an officer is an agent . . . .”).
Claims under § 1983 against the Warden Defendants in
their official capacities may be dismissed because the City of
Philadelphia is the real party defendant in interest.

While

actions brought against a government official in his or her
individual or personal capacity seek to impose liability on the
government official for actions taken under color of state law,
official capacity actions represent another way to sue the
municipality of which the officer is an agent.

See, e.g.,

Gregory v. Chehi, 843 F.2d 111, 120 (3d Cir. 1988); see also
Pennavaria v. Walton, No. 10-0415, 2010 WL 2650413, at *4 (W.D.
Pa. June 30, 2010); Brice v. City of York, 528 F. Supp. 2d 504,
17

516 n.19 (M.D. Pa. 2007); Kenny v. Whitpain Twp., No. 96-3527,
1996 WL 445352, at *2-3 (E.D. Pa. Aug. 6, 1996); Verde v. City
of Phila., 862 F. Supp. 1329, 1336–37 (E.D. Pa. 1994).

Because

the City is a party to this case, the claims against the Warden
Defendants in their official capacities will, therefore, be
dismissed with prejudice as redundant.

2.

Individual Capacity

Rosario alleges that the Warden Defendants violated
his rights while he was incarcerated in several ways:

he was

the only one removed from his facility as a result of the murder
of Lance Mears; he never received documents from any prison
employee, including the wardens, of why he was moved from his
facility and of the status of the investigation of Lance Mears;
and he was improperly targeted as a result of the Warden
Defendants’ investigation.
20:6.

1/9/14 Rule 16 Conf. Trans. 19:13-

Rosario also alleges that he was placed in solitary

confinement as a pretrial detainee in violation of his
constitutional rights.

See, e.g., Compl. ¶ 40.

He asserts that

these actions violated his Fifth, Eighth, and Fourteenth

18

Amendment rights.9

The Warden Defendants argue that Rosario has

insufficiently pleaded that they are individually liable.

The

9

The Court analyzes Rosario’s due process allegations under
the Fourteenth Amendment, rather than the Fifth Amendment.
Rosario fails to allege a Fifth Amendment claim against the
Warden Defendants because the Due Process Clause of the Fifth
Amendment only applies to federal officials. See, e.g.,
Bergdoll v. City of York, 515 F. App'x 165, 170 (3d Cir. 2013)
(citing Nguyen v. U.S. Catholic Conference, 719 F.2d 52, 54 (3d
Cir. 1983)).
The Court also finds that Rosario does not state an
individual capacity claim under § 1983 against the Warden
Defendants for denial of equal protection under the Fourteenth
Amendment. To succeed in a claim under 42 U.S.C. § 1983 for
denial of equal protection, a plaintiff must prove the existence
of purposeful discrimination. Batson v. Kentucky, 476 U.S. 79,
93 (1986). The plaintiff must demonstrate that he received
“different treatment from that received by other individuals
similarly situated.” Andrews v. City of Phila., 895 F.2d 1469,
1478 (3d Cir. 1990).
The Court can only discern one factual allegation to
support Rosario’s equal protection claim: Rosario was singled
out in that he was the only inmate transferred to another
facility following the murder of Lance Mears. 1/9/14 Rule 16
Conf. Trans. 19:13-16. Rosario has not made any allegations
regarding any individuals who were similarly situated, but were
not transferred. Therefore, Rosario’s equal protection claims
against the Warden Defendants will be dismissed. See, e.g.,
Solan v. Zickefoose, 530 F. App'x 109, 111 (3d Cir. 2013).
Although Rosario alleges that the defendants, by failing to
prevent his wrongful imprisonment, deprived him of custody of
his child, such allegations are conclusory and lack any
plausible facts of how the Warden Defendants contributed to
Rosario’s termination of parental rights. Compl. ¶¶ 67-71.
Such allegations do not support the involvement of the Warden
Defendants in the family court proceedings. Therefore,
Rosario’s allegations regarding his termination of parental
rights do not state a claim regarding equal protection under the
19

Court will dismiss with prejudice Rosario’s § 1983 claims
against the Warden Defendants.

a.

Legal Standard for § 1983 Individual
Capacity Claim

When a plaintiff brings a § 1983 claim against a
defendant in his or her individual capacity, the plaintiff must
establish that the defendant had “personal involvement in the
alleged wrongs; liability cannot be predicated solely on the
operation of respondeat superior.”

Rode v. Dellarciprete, 845

F.2d 1195, 1207 (3d Cir. 1988) (emphasis omitted).

Personal

involvement can be demonstrated through “allegations of personal
direction or of actual knowledge and acquiescence.”

Id.

There

is no liability in individual capacity § 1983 actions based on a
theory of respondeat superior.

b.

Monell, 436 U.S. at 693.

Pretrial Detainee Status

Rosario alleges several times in his complaint that he
was a pretrial detainee during the time periods at issue.

The

Due Process Clause of the Fourteenth Amendment protects pretrial
detainees from punishment that may not constitutionally be
inflicted upon detainees.

See Bell v. Wolfish, 441 U.S. 520,

Fourteenth Amendment, cruel and unusual punishment under the
Eighth Amendment, or due process under the Fourteenth Amendment.
20

535 n.16, 538-39 (1979).

The Eighth Amendment applies only

after the state “has secured a formal adjudication of guilt”
because prior to that time it has not acquired the “power to
punish with which the Eighth Amendment is concerned.”
v. Wright, 430 U.S. 651, 671 n.40 (1977).

Ingraham

“In assessing whether

the conditions are reasonably related to the assigned purposes,
we must further inquire as to whether these conditions ‘cause
[inmates] to endure [such] genuine privations and hardship over
an extended period of time, that the adverse conditions become
excessive in relation to the purposes assigned to them.’”
Hubbard v. Taylor, 399 F.3d 150, 159 (3d Cir. 2005) (alterations
in original) (quoting Union County Jail Inmates v. DiBuono, 713
F.2d 984, 992 (3d Cir. 1983)).
The public records attached to the DA Defendants’
motion illustrate that Rosario has been incarcerated during the
entire time period at issue in his complaint.
Defendants’ Mot., Exs. A-B, ECF No. 6-1.

See DA

The Court therefore

categorizes Rosario as a convicted prisoner and not a pretrial
detainee.

See Hill v. Ocean Cnty. Jail Complex, No. 05-6034,

2006 WL 372984, at *2 n.2 (D.N.J. Feb. 16, 2006) (citing
Hubbard, 399 F.3d at 156 n.9).

Accordingly, the Court will

analyze Rosario’s claims regarding his conditions of confinement
under the Eighth Amendment, rather than under the Fourteenth
21

Amendment due process standard for pretrial detainees.

Cf. Laza

v. Reish, 84 F.3d 578, 580 (2d Cir. 1996).

c.

Eighth Amendment Claims

The Eighth Amendment protects prison inmates from
cruel and unusual punishment.
U.S. 825, 832 (1994).

See, e.g., Farmer v. Brennan, 511

Not all deficiencies and inadequacies in

prison conditions, however, amount to a violation of a
prisoner's constitutional rights.
U.S. 337, 349 (1981).

See Rhodes v. Chapman, 452

To assert an Eighth Amendment conditions

of confinement claim, a prisoner must satisfy both an objective
and subjective test.
(1991).

See Wilson v. Seiter, 501 U.S. 294, 298

Specifically, a prisoner must show that the alleged

deprivation is sufficiently serious and that he has been
deprived of the “minimal civilized measure of life's
necessities,” such as food, clothing, shelter, sanitation,
medical care, or personal safety.
(quoting Rhodes, 452 U.S. at 347).

Farmer, 511 U.S. at 834
Only “extreme deprivations,”

however, are sufficient to present a claim for unconstitutional
conditions of confinement.

Hudson v. McMillian, 503 U.S. 1, 8-9

(1992).
The practice of housing certain prisoners in isolation
from other inmates is not a condition of confinement that
22

violates the Eighth Amendment.

Solitary confinement in and of

itself does not violate Eighth Amendment prohibitions, and the
temporary inconveniences and discomforts incident thereto cannot
be regarded as a basis for judicial relief.

Ford v. Bd. of

Managers of N.J. State Prison, 407 F.2d 937, 940 (3d Cir. 1969)
(footnote omitted); see also Washington—El v. Beard, No. 081688, 2011 WL 891250, at *3 (W.D. Pa. Mar. 11, 2011).

Neither

classification nor confinement to segregation, either
administrative or punitive, implicates the Cruel and Unusual
Punishment Clause of the Eighth Amendment unless the conditions
themselves are cruel and unusual.

Hutto v. Finney, 437 U.S.

678, 686 (1978).
Rosario alleges that he was placed in solitary
confinement for eight months.

Compl. ¶ 22.

The duration of an

inmate's confinement, while not itself a controlling factor in
Eighth Amendment analysis, nonetheless helps to gauge the
cumulative burden of the deprivations that the inmate has
endured.

A relatively short exposure to harsh conditions is

less onerous than a protracted exposure, and courts have,
therefore, looked to the length, as well as the severity, of
solitary confinement as one element of its constitutional
validity.

Johnson v. Anderson, 370 F. Supp. 1373, 1387 (D. Del.

1974), modified, 420 F. Supp. 845 (D. Del. 1976).
23

Though there

is no uniform standard, the longer the stay in solitary
confinement, the greater the chance it violates the Eighth
Amendment.

Paith v. Cnty. of Washington, No. 06-00806, 2008 WL

2950763, at *6 n.14 (W.D. Pa. July 25, 2008), aff'd, 394 F.
App'x 858 (3d Cir. 2010).
Despite the length of Rosario’s placement in solitary
confinement, Rosario has failed to allege inhumane prison
conditions, such that he was deprived of basic necessities, or
that the Warden Defendants acted with deliberate indifference in
failing to protect his health or safety.

Rosario’s allegations

that he was transferred to a different facility and subjected to
solitary confinement lack any facts to demonstrate that the
conditions of his confinement deprived him of any basic need
such as food, clothing, shelter, sanitation, medical care or
personal safety.

Therefore, Rosario’s § 1983 claims against the

Warden Defendants for violation of the Eighth Amendment will be
dismissed.

See, e.g., Jones v. Sec’y Pa. Dep’t of Corr., No.

13-3834, 2013 WL 6610805, at *3 (3d Cir. Dec. 12, 2013); Green
v. Coleman, No. 13-00008, 2013 WL 6185172, at *5 (W.D. Pa. Nov.
26, 2013).

24

d.

Due Process Claims

Procedural due process rights are triggered by
deprivation of a legally cognizable liberty interest.

For a

prisoner, such a deprivation occurs when the prison “imposes
atypical and significant hardship on the inmate in relation to
the ordinary incidents of prison life.”
U.S. 472, 484 (1995).

Sandin v. Conner, 515

In determining whether a protected

liberty interest exists, the court must consider:

(1) the

amount of time the prisoner was placed into disciplinary
segregation; and (2) whether the conditions of his confinement
were significantly more restrictive than those imposed upon
other inmates in solitary confinement.

See Shoats v. Horn, 213

F.3d 140, 144 (3d Cir. 2000).
The plaintiff's placement in solitary confinement does
not implicate an interest protected by the Due Process Clause.
See Mearin v. Dohman, No. 06-4859, 2009 WL 3127760, at *8 (E.D.
Pa. Sept. 29, 2009); see also Sheehan v. Beyer, 51 F.3d 1170,
1175 (3d Cir. 1995) (holding that the Due Process Clause does
not create a liberty interest for an inmate to remain among the
general prison population).

The Third Circuit has held that

administrative segregation in the S.C.I. Graterford Restricted
Housing Unit for periods as long as fifteen months does not
create an atypical and significant hardship and, thus, does not
25

deprive an inmate of a liberty interest.

Griffin v. Vaughn, 112

F.3d 703, 708 (3d Cir. 1997); see also Smith v. Mensinger, 293
F.3d 641, 654 (3d Cir. 2002) (seven months in disciplinary
confinement did not implicate a liberty interest); Torres v.
Fauver, 292 F.3d 141, 151-52 (3d Cir. 2002) (disciplinary
detention for fifteen days and administrative segregation for
120 days did not implicate a protected liberty interest).
The Due Process Clause also does not protect inmates
from transfer from one institution to another, even if the
change in facility subjects the inmate to more strict conditions
of confinement.

Mearin, 2009 WL 3127760, at *9 (citing McKune

v. Lile, 536 U.S. 24, 39 (2002), and Meachum v. Fano, 427 U.S.
215, 224-25 (1976)).

Furthermore, Rosario has not alleged that

any state law or regulation gave him a liberty interest in
preventing his transfer to a different facility in light of the
murder investigation.

Rosario has not pleaded any facts to

indicate that his transfer imposed an atypical and significant
hardship in relation to ordinary prison life or to establish the
presence or absence of procedures afforded him before and after
his transfer.
To the extent that Rosario alleges a due process claim
regarding his placement in solitary confinement or regarding his

26

transfer to a different facility, those claims against the
Warden Defendants will be dismissed.

B.

State Law Claims Against the Warden Defendants
The Warden Defendants do not move to have any of

Rosario’s state law claims dismissed under Rule 12(b)(6).

Adams

and Delaney are included in Rosario’s allegations related to his
state law torts.

See, e.g., Compl. ¶ 79 (alleging that “the

remaining Defendants had a[n] affirmative duty to make formalinquiries as superior of the City of Philadelphia Prisons
Department”).

Because the Warden Defendants failed to move to

dismiss any of those claims, the Court finds that they may
therefore proceed.

C.

§ 1983 Claims Against the DA Defendants
Rosario sues the DA Defendants in their official

capacities and their individual capacities.

27

Compl. ¶¶ 8-11.

1.

Official Capacity10

A suit against District Attorney Williams and former
District Attorney Abraham, both serving as the District Attorney
during the time period alleged in the complaint, is treated as a
suit against the District Attorney’s Office itself.

Graham, 473

U.S. at 166.
The Philadelphia District Attorney's Office, however,
is not a separate legal entity for the purposes of § 1983.

In

Reitz v. County of Bucks, the Third Circuit recognized that a
district attorney's office is not an entity for purposes of
§ 1983 liability.

125 F.3d 139, 148 (3d Cir. 1997).

Moreover,

“all suits against any department of the City must be brought in
the name of the City itself because the departments of the City
do not have an independent corporate existence.”

City of Phila.

v. Glim, 613 A.2d 613, 616 (Pa Commw. Ct. 1992); see also

10

Rosario asserts an official capacity claim against
Assistant District Attorneys Doyle and McCann. Only those
municipal officials who have final policymaking authority may by
their actions subject the government to § 1983 liability.
Whether a particular official has final policymaking authority
is a question of state law. City of St. Louis v. Praprotnik,
485 U.S. 112, 123 (1988) (citing Pembaur v. Cincinnati, 475 U.S.
469, 483 (1986) (plurality opinion)). Under Pennsylvania law,
only the District Attorney possesses policymaking authority for
the District Attorney’s Office. Payson v. Ryan, No. 90-1873,
1992 WL 111341, at *11 (E.D. Pa. May 14, 1992), aff'd, 983 F.2d
1051 (3d Cir. 1992). Therefore, the DA Defendants’ motion to
dismiss is granted with respect to Rosario’s claims against
Doyle and McCann in their official capacities.
28

Atkinson v. City of Phila., No. 99-1541, 2000 WL 295106, at *2
(E.D. Pa. Mar. 20, 2000).
Because the City of Philadelphia is named as a
defendant in this action and has already answered Rosario’s
complaint, the official capacity claims against the DA
Defendants will be dismissed as redundant.

See Joobeen v. City

of Phila. Police Dep't, No. 09-1376, 2010 WL 844587, at *5 (E.D.
Pa. Mar. 4, 2010); Cruz v. City of Phila., No. 07-493, 2007 WL
4190690, at *4 (E.D. Pa. Nov. 21, 2007); Domenech v. City of
Phila., No. 06-1325, 2007 WL 172375, at *2 (E.D. Pa. Jan 18,
2007).

2.

Individual Capacity

In his complaint, Rosario alleges that the DA
Defendants failed to properly investigate the murder of Lance
Mears and conspired with the Philadelphia Police Department in
doing so; conspired with members of the Department of
Corrections and county prison officials to house him in solitary
confinement; improperly prosecuted Rosario; and threatened a
recanting witness with prosecution if he did not testify for the
prosecution.

Compl. ¶¶ 22, 24-26, 30-32, 39-40.

Defendants assert absolute immunity.

29

The DA

Prosecutors are immune for actions performed in a
quasi-judicial role.

Imbler v. Pachtman, 424 U.S. 409, 431

(1976); Kulwicki v. Dawson, 969 F.2d 1454, 1463 (3d Cir. 1992).
Absolute immunity is afforded to prosecutors for acts
“intimately associated with the judicial phase of the criminal
process,” such as initiating and prosecuting a criminal case.
Imbler, 424 U.S. at 430-31.
Acts undertaken by a prosecutor in preparing for the
initiation of judicial proceedings or for trial, and which occur
in the course of his role as an advocate for the State, are
entitled to the protections of absolute immunity.
Fitzsimmons, 509 U.S. 259, 273 (1993).

Buckley v.

“[T]he duties of the

prosecutor in his role as advocate for the State involve actions
preliminary to the initiation of a prosecution and actions apart
from the courtroom,” and are nonetheless entitled to absolute
immunity.

Id. at 272 (quoting Imbler, 424 U.S. at 431 n.33).

In particular, an out-of-court “effort to control the
presentation of [a] witness' testimony” was entitled to absolute
immunity because it was “fairly within [the prosecutor's]
function as an advocate.”

Id. at 272-73 (alterations in

original) (quoting Imbler, 424 U.S. at 430 n.32).

A

prosecutor's administrative duties and those investigatory
functions that do not relate to an advocate's preparation for
30

the initiation of a prosecution or for judicial proceedings,
however, are not entitled to absolute immunity.

Id. at 273

(citing Burns v. Reed, 500 U.S. 478, 494-96 (1991)).
Prosecutors are absolutely immune in § 1983 actions
for their decisions to prosecute, and that immunity holds even
against a civil plaintiff’s allegation that he was prosecuted in
bad faith or for an improper purpose.

The decision to initiate

a prosecution is at the core of a prosecutor's judicial role.
Kulwicki, 969 F.2d at 1463-64.

A prosecutor is absolutely

immune when making this decision, even where he acts without a
good faith belief that any wrongdoing has occurred.
1464.

Id. at

Furthermore, there is no evidence here of any personal

animus that would take the DA Defendants’ actions outside of the
prosecutorial role.
The Court specifically addresses Rosario’s allegations
that the DA Defendants, and in particular Assistant District
Attorney Doyle, threatened the prosecution’s main witness, Carl
Landsowne, with being prosecuted for the murder of Lance Mears
if he recanted and refused to testify for the prosecution.
Compl. ¶¶ 30, 39; 1/9/14 Rule 16 Conf. Trans. 13:2-25.
Whether Doyle or the other DA Defendants knew of or
encouraged Landsowne to give false testimony, those actions are
barred by absolute prosecutorial immunity.
31

See Imbler, 424 U.S.

at 431 n.34 (stating that prosecutors enjoy absolute immunity
even when there is “willful use . . . of perjured testimony”);
Burns, 500 U.S. at 489-90 (describing the absolute immunity of
prosecutors from damages liability “for making false or
defamatory statements in judicial proceedings . . . and also for
eliciting false and defamatory testimony from witnesses”);
Kulwicki, 969 F.2d at 1465 (noting that “soliciting false
testimony from witnesses . . . is absolutely protected,” as are
“interviews generating evidence to be presented” in a court
proceeding); Brawer v. Horowitz, 535 F.2d 830, 832 (3d Cir.
1976) (holding prosecutor immune from liability where
allegations were that he and a witness “conspired to use
perjured testimony and to conceal exculpatory evidence”).
The act of preparing and calling witnesses in
conjunction with an ongoing judicial proceeding is a fundamental
prosecutorial function that is entitled to absolute immunity.
Anderson v. Venango Cnty., Pa., No. 10-79, 2011 WL 147907, at *6
(W.D. Pa. Jan. 18, 2011), aff'd, 458 F. App'x 161 (3d Cir.
2012).

Furthermore, pressuring individuals into bargains with

the prosecution and forewarning them of future prosecution
receives the protection of absolute immunity because those
actions are directly connected to the prosecutor’s judicial lawenforcement function.

See Light v. Haws, No. 03-725, 2007 WL
32

2916461, at *5 (M.D. Pa. Oct. 5, 2007) (citing cases); Cap v.
Hartman, No. 95-5871, 1996 WL 266701, at *4 (E.D. Pa. May 9,
1996).
Accordingly, the DA Defendants have absolute immunity
against Rosario’s § 1983 individual capacity claims, and those
claims will be dismissed.11

11

The Court has stated above that it considers Rosario’s
conspiracy allegations as a civil conspiracy claim under
Pennsylvania law. The DA Defendants, however, make several
arguments with regard to Rosario’s conspiracy claims under 42
U.S.C. § 1985. Inasmuch as Rosario’s complaint arises from the
prosecutor's decision to initiate and prosecute criminal
charges, there is absolute immunity from liability under §§ 1983
and 1985. Parker v. Shefsko, No. 98-5811, 1999 WL 248316, at *1
(E.D. Pa. Apr. 23, 1999); see also Jorden v. Nat'l Guard Bureau,
799 F.2d 99, 108 n.12 (3d Cir. 1986). Because sections 1983 and
1985 require identical analyses where immunity is asserted, the
conclusions set out earlier with respect to liability for
damages under section 1983 are directly applicable here.
Raitport v. Provident Nat’l Bank, 451 F. Supp. 522, 534 (E.D.
Pa. 1978).
Lastly, Rosario alleges that the DA Defendants were
involved in conspiracies with either the Philadelphia Police
Department or prison officials in violation of § 1985. To the
extent those allegations involve administrative or investigative
functions of a prosecutor, thus removing those allegations from
the scope of absolute prosecutorial immunity, Rosario still
fails to state a claim under § 1985. In stating a claim for
conspiracy, a plaintiff may not make “[b]are conclusory
allegations of ‘conspiracy’ or ‘concerted action,’” but is
required to “expressly allege an agreement or make averments of
communication, consultation, cooperation, or command from which
such agreement can be inferred.” Flanagan v. Shively, 783 F.
Supp. 922, 928 (M.D. Pa.), aff'd, 980 F.2d 722 (3d Cir. 1992).
Allegations of a conspiracy “must be supported by facts bearing
out the existence of the conspiracy and indicating its broad
33

D.

State Law Claims Against the DA Defendants
Rosario alleges various state law claims arising out

of his arrest and prosecution for the murder of Lance Mears.
Rosario alleges against the DA Defendants claims of negligence,
malicious prosecution, abuse of process, false arrest, false
imprisonment, negligent infliction of emotional distress,
intentional infliction of emotional distress, and a civil
conspiracy involving the DA Defendants and members of the
Philadelphia Police Department and county and state prison
officials.

Compl. ¶¶ 54-65.

Rosario’s state law claims against

the DA Defendants fail to state a claim due to the DA
Defendants’ absolute immunity.
Under Pennsylvania law, “high public officials,”
including prosecutors, “are immune from suits seeking damages
for actions taken or statements made in the course of their
official duties.”
2001).

Durham v. McElynn, 772 A.2d 68, 69 (Pa.

Conduct is within a prosecutor's duties or powers when

it is “closely related” to the prosecutor's “official duties.”
McCormick v. Specter, 275 A.2d 688, 689 (Pa. Super. Ct. 1971).

objectives and the role each defendant allegedly played in
carrying out those objectives.” Cap, 1996 WL 266701, at *3
(quoting Flanagan, 783 F. Supp. at 928). Rosario’s allegations
against the DA Defendants, as interpreted as a claim under
§ 1985, do not meet this standard.
34

In applying immunity to district attorneys, the court emphasized
that “it is the public interest—not that of the official
involved—which provides the rationale for the immunity.”

Id. at

689.
Rosario alleges that the DA Defendants, and
particularly John Doyle, engaged in inappropriate conduct in the
performance of their positions as prosecutors.

Specifically,

Doyle’s conduct relating to the witness recantation pertains to
the undertakings of a prosecutor’s office in meeting with
witnesses and preparing witnesses to testify.

Doyle’s meetings

with the witness were thus closely related to his official
duties.

Accordingly, absolute immunity bars Rosario’s state law

claims against Doyle and the other DA Defendants.
those state law claims will be dismissed.

Therefore,

See Anderson, 458 F.

App'x at 165-66; Douris v. Schweiker, 229 F. Supp. 2d 391, 403
(E.D. Pa. 2002), aff'd sub nom. Douris v. Rendell, 100 F. App'x
126 (3d Cir. 2004).

E. Leave to Amend
The Third Circuit has held that even when a plaintiff
does not seek leave to amend, if a complaint is vulnerable to
12(b)(6) dismissal, a District Court must permit a curative
amendment, unless an amendment would be inequitable or futile.
35

Alston v. Parker, 363 F.3d 229, 235-36 (3d Cir. 2004) (citing
Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir.
2002)).

Dismissal without leave to amend is justified on the

grounds of bad faith, undue delay, prejudice, or futility.
Shane v. Fauver, 213 F.3d 113, 115 (3d Cir. 2000) (citing In re
Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1434 (3d
Cir. 1997)).
The Court declines to allow Rosario leave to amend his
complaint because the Court allowed the plaintiff to give a
complete, on-the-record explanation of the facts of the case
during the Rule 16 conference, and therefore the Court concludes
that amendment would be futile.

Furthermore, Rosario’s state

law claims against the Warden Defendants will proceed, as will
all those claims against the answering defendants, including the
City of Philadelphia.

V.

Conclusion
For the reasons stated above, both the DA Defendants’

and the Warden Defendants’ motions to dismiss will be granted in
their entirety.
An appropriate Order shall issue.

36