LAWRENCE v. NUTTER et al

Filing 35

MEMORANDUM. AN APPROPRIATE ORDER FOLLOWS.. SIGNED BY HONORABLE GERALD J. PAPPERT ON 6/20/17. 6/20/17 ENTERED AND COPIES MAILED TO PRO SE PLFF., E-MAILED TO COUNSEL, 1 COPY TO LEGAL BIN. Modified on 6/20/2017 (pr, ).

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
LIONEL LAWRENCE,
Plaintiff,
CIVIL ACTION
No. 13-4293

v.
MICHAEL NUTTER, et al.,
Defendants.
PAPPERT, J.

June 20, 2017
MEMORANDUM

Lionel Lawrence sued former Mayor of Philadelphia Michael Nutter,
Philadelphia Prison System Commissioner Louis Giorla, and Curran-Fromhold
Correctional Facility Warden John Delaney alleging that they violated his
constitutional rights by, inter alia, housing Lawrence in a three-person cell that was
originally designed for two people. The Court grants Defendants’ motion to dismiss
because Lawrence has not alleged that any of the individual Defendants were
personally involved in the alleged underlying constitutional violation. Lawrence may
amend his complaint again, consistent with the attached Order.
I.
Lawrence’s original action was one of approximately 700 overcrowding cases that
were consolidated and where the sole defendant was the City of Philadelphia. See
Lawrence v. Nutter, 655 F. App’x 129 (3d Cir. 2016). Lawrence was initially
represented by counsel. In December 2013, the City reached an agreement with
Plaintiffs’ counsel. Lawrence rejected the settlement, his attorney withdrew from the
case in April 2014 and Lawrence continued with this litigation pro se. Id. at 130.
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On July 15, 2014, Defendants filed a motion to dismiss. (ECF No. 12.) Lawrence
did not file a response. Judge Shapiro instructed him to respond; when he failed to do
so, she granted the Defendants’ motion. The Third Circuit Court of Appeals reversed,
concluding that the district court abused its discretion by dismissing Lawrence’s suit
without addressing the factors set forth in Poulis v. State Farm Fire & Casualty
Company, 747 F.2d 863, 868 (3d Cir. 1984). See Lawrence, 655 F. App’x at 131.
Lawrence filed his Amended Complaint on July 25, 2017. (ECF No. 23.)
Defendants filed a second motion to dismiss on July 27, 2016. (ECF No. 24.) On
December 20, 2016, the case was reassigned to this Court. (ECF No. 28.) On January
27, 2017, the Court ordered Lawrence to file a response to the Defendants’ motion.
(ECF No. 30.) Lawrence responded on February 21, 2017.
Lawrence’s Amended Complaint alleges he is a pretrial detainee currently
housed in Curran-Fromhold Correctional Facility. (Am. Compl. ¶ 7.)1 Lawrence
explains that while the unit he is housed in was originally constructed to hold 64
inmates, due to severe overcrowding, it now houses 96 inmates. (Id.) Prisoners are
housed in three-person cells where one person sleeps on a plastic “boat,” which is a
plastic tray used as a bed. (Id. ¶ 8); see also Robinson v. Nutter, No. 13-538, 2017 WL
1330507, at *1 (E.D. Pa. Feb. 3, 2017). The boat is kept near the cell’s toilet, which
exposes it to urine and fecal matter. (Am. Compl. ¶ 8.) Lawrence also alleges the
prison has subjected him to, inter alia, lockdowns, dangerous and unhealthy conditions
and inadequate laundry practices. (Id. ¶¶ 10, 12, & 14.)

Lawrence appears to be a former inmate. On March 27, 2017, he filed a letter to update the
personal address listed on the docket. (ECF No. 32.) In the letter, he remarked that he now has a
“home address.”
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II.
To survive a motion to dismiss under Rule 12(b)(6), a complaint must provide
“more than labels and conclusions” or “a formulaic recitation of the elements of a cause
of action.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citation omitted).
“Factual allegations must be enough to raise a right to relief above the speculative level
on the assumption that all the allegations in the complaint are true (even if doubtful in
fact).” Id. (citation omitted). While a complaint need not include detailed facts, it must
provide “more than an unadorned, the-defendant-unlawfully-harmed-me accusation.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 555).
Twombly and Iqbal require the Court to take three steps to determine whether
the second amended complaint will survive Defendants’ motion to dismiss. See Connelly
v. Lane Const. Corp., 809 F.3d 780, 787 (3d Cir. 2016). First, it must “take note of the
elements the plaintiff must plead to state a claim.” Id. (quoting Iqbal, 556 U.S. at 675).
Next, it must identify the allegations that are no more than legal conclusions and thus
“not entitled to the assumption of truth.” Id. (quoting Iqbal, 556 U.S. at 679). Finally,
where the complaint includes well-pleaded factual allegations, the Court “should
assume their veracity and then determine whether they plausibly give rise to an
entitlement to relief.” Id. (quoting Iqbal, 556 U.S. at 679).
This “presumption of truth attaches only to those allegations for which there is
sufficient factual matter to render them plausible on their face.” Schuchardt v.
President of the United States, 839 F.3d 336, 347 (3d Cir. 2016) (internal quotation and
citation omitted). “Conclusory assertions of fact and legal conclusions are not entitled
to the same presumption.” Id. This plausibility determination is a “context-specific

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task that requires the reviewing court to draw on its judicial experience and common
sense.” Id. (quoting Connelly, 809 F.3d at 786–87).
This plausibility standard, however, “does not impose a heightened pleading
requirement” and does not require a plaintiff to plead specific facts. Id. In other words,
“courts cannot inject evidentiary issues into the plausibility determination.” Id. The
Third Circuit has also made it clear that “at least for purposes of pleading sufficiency, a
complaint need not establish a prima facie case in order to survive a motion to dismiss”
because a “prima facie case is an evidentiary standard, not a pleading requirement and
hence is not proper measure of whether a complaint fails to state a claim.” Connelly,
809 F.3d at 789 (internal quotations and citations omitted). Instead, a plaintiff should
plead “enough facts to raise a reasonable expectation that discovery will reveal evidence
of the necessary elements.” Id. (quoting Phillips v. Cty. of Allegheny, 515 F.3d 224, 234
(3d Cir. 2008)).
Finally, because Lawrence filed his complaint pro se, the Court “must liberally
construe his pleadings.” Dluhos v. Strasberg, 321 F.3d 365, 369 (3d Cir. 2003) (citation
omitted); see also Haines v. Kerner, 404 U.S. 519, 520 (1972) (holding pro se complaints
to “less stringent standards than formal pleadings drafted by lawyers”). “Liberal
construction of pro se pleadings is merely an embellishment of the notice-pleading
standard set forth in the Federal Rules of Civil Procedure.” Castro v. United States,
540 U.S. 375, 386 (2003) (Scalia, J., concurring) (citation and quotation omitted).
“Courts are to construe complaints so ‘as to do substantial justice,’ keeping in mind that
pro se complaints in particular should be construed liberally.” Bush v. City. of

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Philadelphia, 367 F. Supp. 2d 722, 725 (E.D. Pa. 2005) (quoting Alston v. Parker, 363
F.3d 229, 234 (3d Cir. 2004)).
III.
Lawrence asserts claims under § 1983 for violations of the First, Fifth, Eighth,
and Fourteenth Amendments. To establish a prima facie case under § 1983, Lawrence
must first demonstrate that a person acting under color of law deprived him of a federal
right. See Groman v. Twp. of Manalapan, 47 F.3d 628, 633 (3d Cir. 1995). Lawrence
must also show that the person acting under color of law “intentionally” violated his
constitutional rights or acted “deliberately indifferent” in violation of those rights. See,
e.g., County of Sacramento v. Lewis, 523 U.S. 833, 843–44 (1998); Brower v. County of
Inyo, 489 U.S. 593, 596 (1989) (citing Hill v. California, 401 U.S. 797, 802–05 (1971));
see also Berg v. County of Allegheny, 219 F.3d 261, 269 (3d Cir. 2000).
A.
Lawrence sued only individual defendants. “In order to sustain a § 1983 claim
against an individual acting under the color of state law, a plaintiff must demonstrate
that the defendant was personally involved in the alleged violations of his or her federal
rights.” Andrews v. Kenney, No. 16-1872, 2017 WL 2591931, at *2 (E.D. Pa. June 14,
2017) (citing Rode v. Dellaciprete, 845 F.2d 1195, 1207 (3d Cir. 1988)). Lawrence can
establish that a supervisor-defendant was personally involved by alleging facts under
either of two theories: “(1) the defendant-supervisor participated in violating the
plaintiff’s rights, directed others to violate them, or had knowledge of and acquiesced in
his subordinates’ violations; and (2) the defendant, in his role as policymaker, acted
with deliberate indifference in establishing and maintaining a policy, practice, or

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custom which directly caused the plaintiff’s constitutional harm.” Brown v. May,
No. 16-1873, 2017 WL 2178122, at *2 (E.D. Pa. May 17, 2017).
While a Court, under the first theory, “can infer that a defendant had
contemporaneous knowledge of wrongful conduct from the circumstances surrounding a
case, the knowledge must be actual, not constructive.” Chavarriga v. N.J. Dep’t of
Corr., 806 F.3d 210, 222 (3d Cir. 2015). A plaintiff proceeding under the second theory
must “(1) identify the specific supervisory practice or procedure that the supervisor
failed to employ, and show that (2) the existing custom and practice without the
identified, absent custom or procedure created an unreasonable risk of the ultimate
injury, (3) the supervisor was aware that this unreasonable risk existed, (4) the
supervisor was indifferent to the risk; and (5) the underling’s violation resulted from
the supervisor’s failure to employ that supervisory practice or procedure.” Brown v.
Muhlenberg Twp., 269 F.3d 205, 216 (3d Cir. 2001). “[I]t is not enough for a plaintiff to
argue that the constitutionally cognizable injury would not have occurred if the
supervisor had done more than he or she did.” Id. at 216 (quotation omitted). Instead,
a plaintiff “must specifically identify the acts or omissions of the supervisors that show
deliberate indifference, and suggest a relationship between the identified deficiency of a
policy or custom and injury suffered.” Robinson, 2017 WL 1330507, at *2.
Assuming without deciding that Lawrence has alleged an underlying
constitutional violation related to prison overcrowding, his Amended Complaint fails to
state a claim under either of the theories of personal involvement discussed above. The
Amended Complaint does not allege facts to establish that any of the Defendants were
personally involved in the underlying constitutional violation, nor does it allege that

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any of the individual defendants established a custom or practice relating to housing
inmates in three-person cells or any other prison conditions. See Brown, 2017 WL
2178122, at *3; Robinson, 2017 WL 1330507, at *3.
B.
Lawrence did not sue the City of Philadelphia. In its opinion, the Third Circuit
stated that “some uncertainty exists as to the parties Lawrence intended to sue.”
Lawrence, 655 F. App’x at 131. “Although Lawrence’s complaint named only individual
defendants, including the Commissioner of the PPS and the Warden of the facility
where Lawrence was held, it described defendant Michael Nutter, Mayor of
Philadelphia, as ‘a municipality.’ Further, Lawrence’s case was consolidated with
roughly 700 others into an action in which the City of Philadelphia was the sole
defendant. As it stands now, it is unclear whether, in addition to the Commissioner
and the Warden, Lawrence’s intended defendant is Mayor Nutter, the City of
Philadelphia, or both.” Id.
In light of these comments, the Court will broadly construe Lawrence’s
complaint to encompass claims against the City. The Court analyzes Lawrence’s claims
against the City under the standard for municipal liability set forth in Monell v.
Department of Social Services of the City of New York, 436 U.S. 658 (1978). Generally,
a municipality will not be held liable under the doctrine of respondeat superior for the
misconduct of its employees. See Andrews v. City of Philadelphia, 895 F.2d 1469, 1480
(3d Cir. 1990). Rather, a municipality can only be liable under § 1983 when a
constitutional injury results from the implementation or execution of an officially

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adopted policy or informally adopted custom. See Beck v. City of Pittsburgh, 89 F.3d
966, 971 (3d Cir. 1996) (citing Monell, 436 U.S. 658).
A policy “is made when a ‘decisionmaker possess[ing] final authority to establish
municipal policy with respect to the action’ issues an official proclamation, policy, or
edict.” Andrew, 895 F.2d at 1480 (citation and quotation omitted). “A course of conduct
is considered to be a ‘custom’ when, though not authorized by law, such practices of
state officials are so permanent and well settled as to virtually constitute law.” Id.
(citation and quotation omitted). “In either instance, a plaintiff must show that an
official who has the power to make policy is responsible for either the affirmative
proclamation of a policy or acquiescence in a well-settled custom.” Bielevicz v. Dubinon,
915 F.2d 845, 850 (3d Cir. 1990) (citing Andrews, 895 F.2d at 1480). “[A] policy or
custom may also exist where the policymaker has failed to act affirmatively at all,
though the need to take some action to control the agents of the government is so
obvious, and the inadequacy of existing practice so likely to result in the violation of
constitutional rights, that the policymaker can reasonably be said to have been
deliberately indifferent to the need.” Natale, 318 F.3d at 584 (citation and quotation
omitted).
A successful Monell claim must therefore establish: (1) an underlying
constitutional violation; (2) a policy or custom attributable to the municipality; and (3)
that the constitutional violation was caused by the municipality’s policy or custom. See
Monell, 436 U.S. at 658. To show causation where the alleged policy or custom does not
facially violate constitutional rights, the plaintiff “must demonstrate that the municipal
action was taken with ‘deliberate indifference’ as to its known or obvious consequences.”

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Bd. of Cty. Comm’rs v. Brown, 520 U.S. 397, 407 (1997); see also Berg v. County of
Allegheny, 219 F.3d 261, 276 (3d Cir. 2000). “A showing of simple or even heightened
negligence will not suffice.” Id. In other words, custom “requires proof of knowledge
and acquiescence by the decisionmaker.” McTernan, 564 F.3d at 658.
To the extent a plaintiff alleges that defendants failed to train their employees,
this failure to train must also “amount to a deliberate indifference to the rights of
persons with whom those employees will come into contact.” Carter v. City of
Philadelphia, 181 F.3d 339, 357 (3d Cir. 1999). Moreover, “the identified deficiency in
a . . . training program must be closely related to the ultimate injury,” in other words, it
“must have actually caused the constitutional violation.” Thomas v. Cumberland
County, 749 F.3d 217, 222 (3d Cir. 2014) (quoting City of Canton, Ohio v. Harris, 489
U.S. 378, 391 (1989)) (quotations omitted). “Ordinarily, a pattern of similar
constitutional violations by untrained employees is necessary to demonstrate deliberate
indifference for the purposes of failure to train.” Id. at 223 (quoting Connick v.
Thompson, 563 U.S. 51, 62 (2011)).
Lawrence has alleged a policy of placing three inmates in cells that were
designed to hold only two people. Because this policy is not per se unconstitutional, see
Hubbard v. Taylor, 538 F.3d 229, 235 (3d Cir. 2008), he must plead facts which
establish that the decision was “taken with ‘deliberate indifference’ as to its known or
obvious consequences.” Bd. of Cty. Comm’rs 520 U.S. at 407. Lawrence has not so
alleged, nor has he identified a policymaker responsible. His complaint accordingly
does not state a claim under Monell.

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IV.
“[I]n civil rights cases district courts must offer amendment—irrespective of
whether it is requested—when dismissing a case for failure to state a claim unless
doing so would be inequitable or futile.” Fletcher-Harlee Corp. v. Pote Concrete
Contractors, Inc., 482 F.3d 247, 251 (3d Cir. 2007); see also Alston v. Parker, 363 F.3d
229, 235 (3d Cir. 2004); Grayson v. Mayview State Hosp., 293 F.3d 103, 114 (3d Cir.
2002). Under Federal Rule of Civil Procedure 15(a), “courts may grant . . . amendments
‘when justice so requires.’” Fraser v. Nationwide Mut. Ins. Co., 352 F.3d 107, 116 (3d
Cir. 2004) (citing FED. R. CIV. P. 15(a)). Laurence is free to file a Second Amended
Complaint. In the Second Amended Complaint, he should clarify if he seeks to sue the
City of Philadelphia in addition to the individually named Defendants.
An appropriate order follows.

BY THE COURT:
/s/ Gerald J. Pappert
GERALD J. PAPPERT, J.

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