LOPEZ v. CURRAN FROMHOLD CORRECTIONAL FACILITY
MEMORANDUM. AN APPROPRIATE ORDER FOLLOWS.. SIGNED BY HONORABLE GERALD J. PAPPERT ON 7/5/17. 7/5/17 ENTERED AND COPIES MAILED TO PRO SE PLFF., E-MAILED TO COUNSEL.(pr, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
CITY OF PHILADELPHIA, et al.,
July 5, 2017
Jerry Lopez, a pro se inmate, sued the City of Philadelphia, former Philadelphia
Prison System Commissioner Louis Giorla, Curran-Fromhold Correctional Facility
Warden John Delaney, Deputy Warden Clyde Gainey, Deputy Warden Gerald May,
Deputy Warden Frederick Abellos, and the Deputy Warden of Administration. He
alleges the Defendants violated his constitutional rights by housing him in a threeperson cell that was designed for two people. The Defendants filed a motion to dismiss
Lopez’s Amended Complaint. The Court denies the motion.
Lopez was arrested in Philadelphia and placed in the custody of the Philadelphia
Prison System on May 31, 2008. (Am. Compl. ¶ 17, ECF No. 6.) He remained at the
Curran-Fromhold Correctional Facility (“CFCF”) until November of 2012, when he was
transferred to a commonwealth prison. (Id.) Through almost his entire time at CFCF,
Lopez was housed in over-crowded cells. He was frequently housed with two other
inmates in a cell designed for two people, an arrangement known as “triple-celling.”
(Id.) In those cells, Lopez was forced to sleep on a “boat”—a plastic tray used as a
bed—near the cell’s toilet. (Id.) Lopez was also housed in a windowless multipurpose
room with four other inmates for seven consecutive months of his stay at CFCF. (Id.
¶¶ 18, 25.) He was moved to non-overcrowded cells only “once-in-a-while,” something
he contends was done merely to create “the illusion of not being housed illegally.” (Id.
18.) Lopez was also “locked down” in his cell for weeks at a time due to understaffing at
CFCF. (Id. ¶ 22.) Because of the chronic overcrowding at the prison, Lopez was unable
to shower for up to a week at a time. (Id. ¶¶ 22, 34.) The combined effect of these
conditions was to exacerbate Lopez’s existing seizures and depression. (Id. ¶ 28.)
The City, Giorla, Delaney, Gainey, May and Abellos moved to dismiss Lopez’s
claims on February 10, 2015. (ECF No. 10.) Lopez filed his response on March 11,
2015. (ECF No. 12.) The case was initially before Judge Shapiro, who referred Lopez to
the Court’s prisoner civil rights panel for possible appointment of counsel and placed
the case in suspense pending the panel’s decision. (ECF No. 13.) The case was then
transferred twice: first to Judge Goldberg on August 1, 2016, (ECF No. 17), and again to
this Court on December 12, 2016, (ECF No. 18). The case was removed from suspense
on March 16, 2017. (ECF No. 19.)
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
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 Lopez 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”). “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 Philadelphia,
367 F. Supp. 2d 722, 725 (E.D. Pa. 2005) (quoting Alston v. Parker, 363 F.3d 229, 234
(3d Cir. 2004)).
Lopez asserts claims under § 1983 for violations of the First, Fifth, Eighth, Ninth
and Fourteenth Amendments. (Am. Compl. ¶ 15.) To state a claim under § 1983, Lopez
must allege 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). He must also allege
that the person acting under color of law “intentionally” violated his constitutional
rights or acted “deliberately indifferent” to 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).
The Defendants move to dismiss on two grounds. They argue that Lopez’s
municipal liability claim against the City merely restates the elements of Monell
liability and therefore must be dismissed. They also contend that Lopez inadequately
alleges the personal involvement of the Defendants. Neither argument is compelling.
The Court analyzes Lopez’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 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 (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.”
Board of Cty. Comm’rs of Bryan Cty. v. Brown, 520 U.S. 397, 407 (1997). “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 v.
City of York, PA, 564 F.3d 636, 658 (3d Cir. 2009).
The Defendants do not directly contend that Lopez failed to allege an underlying
constitutional violation, something Lopez has sufficiently done.1 Pretrial detainees’
“triple-celling” claims are analyzed under the Due Process Clause of the Fourteenth
Amendment. See, e.g., Bell v. Wolfish, 441 U.S. 520, 534 (1979); Hubbard v. Taylor, 399
F.3d 150, 166–67 (3d Cir. 2005). Conditions of confinement are unconstitutional if the
It is unclear whether Lopez was a pretrial detainee or a convicted prisoner during the time
he was confined. It is therefore unclear whether Lopez enjoyed the protection of the Eighth
Amendment’s cruel and unusual punishment clause or the Fourteenth Amendment’s due process
clause. While the bounds of the Fourteenth Amendment are not clearly defined in this context, the
Fourteenth Amendment provides at least as much protection as the Eighth Amendment when
evaluating conditions of confinement. See Bell v. Wolfish, 441 U.S. 520, 545 (1979) (“[P]retrial
detainees, who have not been convicted of any crimes, retain at least those constitutional rights that
we have held are enjoyed by convicted prisoners”); Stevenson v. Carroll, 495 F.3d 62, 70 (3d Cir.
2007) (“[T]he protections due to sentenced inmates provide a floor for what pretrial detainees may
condition is: (1) the result of an express intent to punish or (2) not rationally related to
a legitimate government purpose. Bell, 441 U.S. at 538–39. Because triple-celling is
not per se unconstitutional, courts must look to the “totality of the conditions” of the
specific prison at issue to determine whether triple celling is rationally related to the
legitimate government purpose of managing an overcrowded prison. Hubbard, 538
F.3d at 233. This analysis depends on the “size of the detainee’s living space, the length
of confinement, the amount of time spent in the confined area each day, and the
opportunity for exercise.” Id. (quoting Ferguson v. Cape Girardeau Cty., 88 F.3d 647,
650 (8th Cir. 1996)).
Sentenced prisoners claims, meanwhile, are evaluated under the Eighth
Amendment. Violations of the Eighth Amendment require both objective and
subjective components. “As to the ‘objective component,’ the court must consider
‘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.’” Grohs v. Santiago, No. 13-3877, 2014
WL 4657116, at *4 (D.N.J. Sept. 17, 2014) (quoting Hubbard v. Taylor, 538 F.3d 299, at
233 (3d Cir. 2008) (Hubbard II). The analysis also looks to the totality of the
circumstances and whether they have somehow harmed the prisoner. Id. at *6. The
subjective component considers whether the officials acted with a “sufficiently culpable
state of mind.” Id. “Thus, the official must both be aware of facts from which the
inference could be drawn that a substantial harm exists, and he must also draw that
inference.” Daniels v. Taylor, No. 13-5510, 2014 WL 3955372, at *4 (D.N.J. Aug. 13,
2014) (quotations omitted)).
Lopez alleges a policy of placing three inmates in cells that were designed to hold
two people. He further alleges that he was forced to sleep on a “boat” near the cell’s
toilet, and was locked down in these cramped conditions for weeks at a time. (Compl.
¶¶ 18, 22.) Also as a result of overcrowding and understaffing at the prison, Lopez and
other inmates were not allowed to shower for up to a week at a time. (Id. ¶ 34.) These
facts, construed liberally and taken as true, provide enough detail about the
circumstances in the prison to survive a motion to dismiss. It is plausible that taken as
a whole, these conditions violated Lopez’s constitutional rights under the Fourteenth or
Eighth Amendments. See, e.g., Peele v. Delaney, No. 12-4877, 2017 WL 467347, at *4
(E.D. Pa. Feb. 3, 2017) (denying motion to dismiss CFCF inmate’s triple celling claim
under Section 1983); Lewis v. Nutter, No. 16-0528, 2016 WL 7028073, at *3 (E.D. Pa.
Nov. 30, 2016) (same); Pichalskiy v. Nutter, No. 15–4704, 2016 WL 7018545, at *2 (E.D.
Pa. Nov. 30, 2016); Cain v. Nutter, No. 15-5524, 2016 WL 7031891, at *3 (E.D. Pa. Dec.
1, 2016); Petty v. Nutter, No. 15–3420, 2016 WL 7018538, at *3 (E.D. Pa. Nov. 30, 2016).
Lopez also alleges a policy or custom attributable to the City. Construing his
allegations liberally, he contends the City created and maintained policies that created
unconstitutional risks by housing inmates in overcrowded cells and holding them in
those cells for weeks on end. He also alleges that other inmates suffered from the same
or similar circumstances, which could establish a practice or custom. See (Am. Compl.
¶¶ 16, 34); see also Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002)
(plaintiff’s complaint did not “allege that other inmates suffered similar
deprivations . . . that might establish a custom” (citing Bielevicz, 915 F.2d at 850
(custom may be proven by showing that a specific course of conduct is “well-settled and
permanent,” even if that conduct is not expressly endorsed by a written rule))). Lopez
also alleges that the City operates and controls CFCF. See (Am. Compl. ¶¶ 42–45).
Finally, Lopez alleges that Deputy Warden Gainey was an official policymaker at
CFCF and knew about and acquiesced in the triple-celling policy with deliberate
indifference to Lopez’s constitutional rights. He alleges that he spoke personally to
Gainey at different times throughout his incarceration, and told him about the
conditions at the prison. (Id. ¶ 38.) Lopez has thus alleged sufficient facts to state a
Giorla, Delaney, Gainey, May and Abellos also move to dismiss Lopez’s claims
against them for failure to allege their personal involvement. “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)).
Lopez can establish that the individual defendants he sued were 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; [or] (2) the defendant, in his role as
policymaker, acted with deliberate indifference in establishing and maintaining a
policy, practice, or 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).
Under the first theory, a Court “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. (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.
Lopez has alleged sufficient facts to show Gainey, May and Abellos’s personal
involvement. He claims that he spoke personally to both Gainey and Abellos at
different times throughout his incarceration while they made rounds through the
prison. (Am. Compl. ¶ 38.) That is sufficient to demonstrate their knowledge of, and
acquiescence in, a custom, policy or practice at this stage in the proceedings. See, e.g.,
Shaw v. Nutter, No. 16-1209, 2017 WL 8955848, at *4 (E.D. Pa. Mar. 6, 2017) (finding
allegation that prison warden made tours of the prison and spoke with the plaintiff
concerning the plaintiff’s complaint sufficient to plead knowledge and acquiescence).
Lopez also alleges that Giorla and Delaney, official policymakers, knew about
and acquiesced in the policy in deliberate indifference of his constitutional rights. He
contends that the pair were responsible for the day-to-day operations of the prisons and
thus would have rectified the conditions at CFCF but for their deliberate indifference.
His allegations are therefore sufficient to state a claim against them. Compare, e.g.,
(Am. Compl. ¶¶ 5–6, 53) (alleging Giorla and Delaney were policymakers at CFCF and
that Delaney managed the daily operations at the prison), with Brown v. May, 2017 WL
2178122, at *2 (dismissing complaint where plaintiff failed to allege defendants were
An appropriate order follows.
BY THE COURT:
/s/ Gerald J. Pappert
GERALD J. PAPPERT, J.
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