HART v. CITY OF PHILADELPHIA et al
MEMORANDUM. AN APPROPRIATE ORDER FOLLOWS.. SIGNED BY HONORABLE JEFFREY L. SCHMEHL ON 9/20/17. 9/21/17 ENTERED AND COPIES MAILED TO PRO SE PLFF., MAILED AND E-MAILED TO COUNSEL. Modified on 9/21/2017 (pr, ).
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
CITY OF PHILADELPHIA, et al.
: CIVIL ACTION
: NO. 13-cv-6661
September 20, 2017
Pro se plaintiff John Hart brings this action under 42 U.S.C. §1983. He alleges
violations of his constitutional rights during an approximately four year period of
incarceration within the Philadelphia Prison System (“PPS”). In his Second Amended
Complaint, plaintiff generally complains about, inter alia, conditions he experienced
during his incarceration at the Curran-Fromhold Correctional Facility (“CFCF”) and at
the Philadelphia Industrial Correction Center (“PICC”), retaliation by corrections
officers, false misconducts issued against him and baseless findings of fact made by
disciplinary hearing examiners. (ECF 52, ¶ 90.) Named as defendants are the City of
Philadelphia, and a number of individuals in their official and individual capacities,
who plaintiff alleges are employees of the PPS, including Louis Giorla, the
Commissioner of PPS, John Delaney, the Warden of CFCF, Michele Farrell, the
Warden of CFCF, William Lawton, the Warden of the PICC, Karen Bryant, the
Warden of PICC, Christopher Thomas, the Director of Records at CFCF, Bruce
Herdman, Chief of Medical Operations of PPS, Sergeants Annceleste Gangemi and
Sohail Akhtar of CFCF, CFCF Correctional Officers Jheovannie Williams, Natalia
Baptiste, Ronald Eure, Ramel Young, Deidra Thornton, PICC Directo of Security
Gerald May, PICC Correctional Officer Joseph Murray, Correctional Officer Charles
Harmer, a hearing examiner for PPS, Correctional Officer John Doe #1, a hearing
examiner for PPS, Correctional Officer John Doe #2, a hearing examiner for PPS and
Correctional Officer John Doe #3, a mail officer for PPS (collectively, the “City of
Philadelphia defendants”). Also named as defendants are Sheila Bedford, the Bail
Commissioner of the City of Philadelphia, Aramark Correctional Service, Inc., Corizon,
the health care provider for the Philadelphia Prison System and James Arnone, a
doctor involved in plaintiff’s medical care at CFCF. Defendants Bedford, Arnone and
Aramark were dismissed by prior Orders (ECF 69, 85, 88) Presently before the Court
is the motion of the City of Philadelphia defendants motion to dismiss for failure to
state a claim. For the reasons that follow, the motion is granted.
A motion to dismiss for failure to state a claim tests the sufficiency of a complaint.
Fed. R. Civ. P. 12(b)(6); Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993). In
evaluating a motion to dismiss, the court must view factual allegations in a light most
favorable to the plaintiff, drawing all reasonable inferences therefrom. Buck v. Hamilton
Twp. Sch. Dist., 452 F.3d 256, 260 (3d Cir. 2002).
The United States Supreme Court has established a two-part test to determine
whether to grant a motion to dismiss. See Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009);
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). First, the court must ascertain
whether the complaint is supported by well-pleaded factual allegations. Iqbal, 556 U.S.
at 679. “Threadbare recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.” Twombly, 550 U.S. at 555. In turn, these factual
allegations must be sufficient to provide a defendant the type of notice contemplated in
Rule 8. See Fed. R. Civ. P. 8(a)(2) (requiring a short and plain statement of the claim
showing the pleader is entitled to relief); see also Phillips v. Cty. of Allegheny, 515 F.3d
224, 233 (3d Cir. 2008).
Taking the well-pleaded facts as true, the court must then determine whether the
plaintiff is “plausibly” entitled to relief. Fowler v. UPMC Shadyside, 578 F.3d 203, 210-11
(3d Cir. 2009). That is, the pleadings must contain enough factual content to allow a
court to make “a reasonable inference that the defendant is liable for the misconduct
alleged.” Iqbal, 556 U.S. at 679. In short, a complaint must not only allege entitlement to
relief, but must also demonstrate such entitlement with sufficient facts to push the claim
“across the line from conceivable to plausible.” Id. at 683; accord Holmes v. Gates, 403
F. App’x 670, 673 (3d Cir. 2010).
Defendant the City of Philadelphia moves to dismiss the Second Amended
Complaint against it on the basis that plaintiff has failed to adequately plead a Monell
Local governments and political subdivisions are not immune from damages
liability for claims brought under § 1983. Owen v. City of Independence, 445 U.S. 622,
657 (1980). However, a local government is only subject to § 1983 liability where the
local government tself causes a constitutional violation. Monell v. Department of Social
Services of City of N.Y., 436 U.S. 658, 694 (1978). That is, a local government cannot
be held liable under § 1983 simply because of the actions of one of its employees. Id.
(expressly rejecting municipal § 1983 liability based on a respondeat superior theory).
A municipality can be held liable under § 1983 only when the implementation of
an officially adopted policy or an informally adopted custom causes the alleged
constitutional violation. Mulholland v. Gov’t Cty. of Berks, Pa., 706 F.3d 227, 237 (3d
Cir. 2013). In the absence of an official policy, a course of conduct can be considered
a custom when municipal officials’ practices are “so permanent and well settled as to
virtually constitute law.” Andrews v. City of Philadelphia, 895 F.2d 1469, 1480 (3d Cir.
1990). 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).;see also Andrews, 895 F.2d at 1480.
In his Second Amended Complaint, plaintiff alleges, in conclusory fashion, that
the City of Philadelphia has a custom, policy or practice of:
a. assigning public defenders to represent defendants at bail hearings who
don't qualify for, nor request, such representation;
b. raising or revoking defendants' bail without due process of law;
c. subjecting inmates to dangerous, severely overcrowded, degrading, cruel,
and unsanitary conditions, both in the holding cells of the police districts and within
the jails of the Philadelphia Prison System, in violation of the First, Eighth, Ninth, and
Fourteenth Amendments to the United States Constitution;
d. failing to employ the requisite amount of correctional officers in the
e. failing to provide various inmate services and programs in the Philadelphia
Prison System, including, but not limited to, social worker access, law library access,
religious services, family visits, telephones, and recreation because of correctional .
f. delaying the release of inmates from the Philadelphia Prison System who
have satisfied all conditions of bail;
g. failing to provide adequate medical care for the inmate population of the
Philadelphia Prison System by hiring Defendant Corizon as its health care provider
which cuts costs for medical services and medication in order to increase its profit
h. failing to provide nutritionally adequate meals for the inmate population of
the Philadelphia Prison System by hiring Defendant Aramark which cuts costs for food
- services in order to increase its profit margin;
i. failing to provide adequate telephone services for the inmate population of
the Philadelphia Prison System by contracting with Global Tel Link, Inc. which
routinely disconnects phone calls, overcharges for services, and charges for services
j. placing inmates in administrative segregation without due process of law;
segregation to the same conditions of confinement as those in punitive segregation
without due process of law;
I. conducting disciplinary hearings against inmates and subjecting inmates to
punitive segregation without due process of law;
m. failing to adhere to court orders and subpoenas;
n. violating the attorney-client privilege by precluding inmates from receiving
legal visits, reading inmates' legal mail, prohibiting inmates from receiving legal mail,
prohibiting inmates from making legal calls to their attorneys, storing outgoing legal
mail in unsecured locations accessible to other inmates and staff, and photocopying
inmates' legal mail;
o. failing to answer grievances thereby denying inmates of the ability to
exhaust their administrative remedies pursuant to the requirements of the Prison
Litigation Reform Act;
p. retaliating against inmates who report violations of the rules and regulations
of the Philadelphia Prison System, who assert their constitutional and due process
rights through the grievance process, and who file lawsuits against employees of the
Philadelphia Prison System.
(ECF 52, ¶ 94.)
Plaintiff provides no factual detail to support his generic statements. He fails to
set forth any factual allegations referencing the conduct, time, place and persons
responsible for any official municipal policy or custom. Plaintiff’s theory appears to be
that since he was the victim of alleged unconstitutional conduct by the individual
defendants, the City of Philadelphia must have automatically had a custom, policy or
practice in place that gave rise to the purported unconstitutional conduct. Plaintiff does
not allege that any other inmates were affected by these alleged policies and customs.
Plaintiff simply provides no factual averments that would plausibly show that the City
maintained any of the policies or practices alleged by plaintiff. Plaintiff’s allegations
amount to a mere recitation of the required elements required to bring forth a Monell
claim and are insufficient to survive a motion to dismiss.
Plaintiff also fails to allege that an official who has the power to make policy is
responsible for any of the alleged policies or acquiesced in a well-settled custom. See
McTernan v. City of New York, 564 F.3d 636, 658-59 (3d Cir. 2009). Plaintiff merely
alleges that “Defendants City of Philadelphia, Louis Giorla, John Delaney, Michele
Farrell, William Lawton, Karen Bryant, Christopher Thomas, Bruce Herdman, …. C.O. J.
Williams, C.O. N. Baptiste, Sgt. Gangemi, C.O. Ronald Eure, Sgt. Akhtar, C.O. R.
Young, C.O. Thornton, Major Gerald May, Lt. Joseph Murray, Hearing Examiner
Harmer, Hearing Examiner John Doe #1, Hearing Examiner John Doe #2, Mail Officer
John Doe #3 . . . either carried out these policies, failed to implement policies to protect
Plaintiff against the violation of his constitutional and due process rights, or were
deliberately indifferent to the violation of his constitutional and due process rights.” [ECF
52, ¶ 95.] Plaintiff does not allege whether any of these individuals were decision
makers and, even if they were, for which specific polices or customs alleged in
paragraph 94 each alleged decision maker was responsible. Therefore, the motion to
dismiss will be granted as to the City of Philadelphia.
Defendants John Delaney and Bruce Herdman move to dismiss the Second
Amended Complaint as to them on the basis that plaintiff has failed to make any factual
allegations of personal involvement against them. The Court agrees and the Second
Amended Complaint is dismissed as to defendants Delaney and Herdman. See Rode
v. Dellarciprete, 845 F. 2d 1195, 1207 (3d Cir. 1988).
Defendants Giorla, Lawton and Farrell move to dismiss the Second Amended
Complaint as to them on the basis that plaintiff has not alleged any facts demonstrating
personal involvement by any of them in any unconstitutional conduct.
With respect to Commissioner Giorla, plaintiff alleges that Giorla failed to
respond to numerous appeals made by plaintiff following denial of grievances filed by
plaintiff. (ECF 52, ¶¶ 41, 42, 49, 61, 63, 64, 66, 69, 71, 87) as well as to a letter sent by
plaintiff (Id. ¶ 47.) However, “a prison official's secondary review of an inmate's
grievance or appeal is not sufficient to demonstrate the personal involvement required
to establish the deprivation of a constitutional right.” Simonton v. Tennis, 437 F. App’x
60, 62-63 (3d Cir. 2011) citing Rode v. Dellarciprete, 845 F.2d 1195, 1207–08 (3d
With respect to PICC Warden Lawton, plaintiff alleges that Lawton denied his
request for a tamper-proof bottle of skin lotion, never responded to an appeal regarding
a misconduct, plaintiff received and denied plaintiff’s appeal of a hearing examiner’s
order. (ECF 52, ¶¶ 51, 55, 68.) None of these allegations allege the requisite personal
involvement to state a claim for relief.
The only allegation that plaintiff makes regarding Warden Farrell is that in
responding to an appeal plaintiff filed regarding his mail, Farrell “erroneously stated
that the tracking number on certified mail indicates when it is received by the post
office prior to arriving at the institution.” (Id. ¶ 87.) Again, as this claim only involves
Farrell’s secondary review of a plaintiff’s grievance, it is not actionable. The claim also
fails to allege any intentional wrongdoing on the part of Farrell.
Defendants Baptiste, Gangemi and Thornton move to dismiss the Second
Amended Complaint as to them on the basis that the filing of false misconduct charges
are not actionable under 42 U.S.C. § 1983. In addition, defendants Williams, Akhtar,
Thomas and May seek dismissal of the filing of false misconduct charges against them.
Plaintiff alleges that these defendants issued five false misconducts against him.
(ECF 52, ¶¶ 54, 57, 67, 74, 80.) However, plaintiff also alleges that he received a
disciplinary hearing to contest the alleged false misconducts. (Id., ¶¶ 55, 58, 68, 77,
81) ”[W]here the prisoner is provided due process, no constitutional violation results
from being falsely accused of a misconduct.” Bradley v. Miller, 2015 WL 6757022, at *7
(W.D. Pa, Nov. 5, 2015). Therefore, the Second Amended Complaint will be dismissed
as to defendants Baptiste, Gangemi and Thornton and the false misconduct allegations
will be dismissed as to defendants Williams, Akhtar, Thomas and May.
Plaintiff also claims that during his incarceration at PICC, defendant Murray, at
defendant May’s direction, ransacked plaintiff’s cell and destroyed his property, served
him with a misconduct and escorted him to punitive segregation (ECF 52, ¶ 75) Plaintiff
also alleges that May was involved in directing his transfer to CFCF. (id.)
In Hudson v. Palmer 468 U.S. 517 (1984), the Supreme Court held that “an
unauthorized intentional deprivation of property by a state employee does not
constitute a violation of the procedural requirements of the Due Process Clause of the
Fourteenth Amendment if a meaningful post-deprivation remedy for the loss is
available.” 468 U.S. 517, 533, (1984). Claims for damage to the personal property of
an inmate fail to state a claim under the Due Process Clause when prison grievance
processes or state tort law actions provide an inmate with meaningful post-deprivation
remedies. Washington v. Grace, 445 F. App'x 611, 616 (3d Cir.2011) (citing Hudson
468 U.S at 533. Here, plaintiff had post-deprivation remedies available to him such as
the Prison grievance process and a state tort action. Accordingly, he cannot state a
claim for relief as to these allegations and therefore these claims will be dismissed with
Nor do plaintiff’s claims that he was transferred to punitive segregation or
transferred to CFCF raise a §1983 claim. “Neither the Due Process Clause nor the
laws of Pennsylvania give a convict a protected liberty interest in remaining in any
particular housing status, in any particular state prison, or in any particular housing
area within a state prison. The Supreme Court has consistently held that a convict
does not have a Fourteenth Amendment liberty interest in a particular housing location
or custody level while under the jurisdiction of correctional authorities.” Nichelson v.
Redwine, 2000 WL 1599246, at *2 (E.D. Pa. Oct. 26, 2000). Accordingly these claims
against defendants Murray and May are dismissed.
Plaintiff claims that defendants Eure, Akhtar and Young destroyed his legal
documents. (ECF 52, ¶¶
69-72). Plaintiff’s claim that his legal documents were
destroyed should be analyzed as a claim that his right of access to courts under the
First and Fourteenth Amendments was violated. See Lewis v. Casey, 518 U.S. 343
Under Lewis, in order to prevail on an access to courts claim, the plaintiff must
show that he suffered “actual injury” due to the interference with his right of access. See
also, Oliver v. Fauver, 118 F.3d 175 (3d Cir.1997) (holding that interference with
prisoner's mail did not violate his right of access to courts without a showing of actual
injury). Examples of “actual injury” given in Lewis include a court dismissal of a
complaint and an inability to even file a complaint. 518 U.S. at 351, Since, plaintiff has
failed to allege that he suffered an “actual injury” as the result of the alleged destruction
of his legal papers, this claim must also be dismissed.
Plaintiff also claims that defendants Correctional Officers Williams, Baptiste,
Thomas, PICC Warden Bryant, and May, the Director of Security at PICC, took
retaliatory actions such as issuing plaintiff misconducts, terminating his employment at
the law library, keeping him in punitive segregation for an additional five days and
transferring him to back to CFCF were in retaliation for naming them as defendants in
this lawsuit. (ECF 52, ¶¶ 54, 56, 58, 62, 65, 76, 82, 83.)
To state a claim for retaliation, a prisoner must allege that: (1) he was engaged
in constitutionally protected conduct, (2) “he suffered some ‘adverse action’ at the
hands of prison officials,” and (3) “his constitutionally protected conduct was ‘a
substantial or motivating factor’ in the decision” to take that action. Rauser v. Horn, 241
F.3d 330, 333 (3d Cir. 2001) (citation omitted).
Even assuming, arguendo, that plaintiff has satisfied the first two elements,
plaintiff has not made any allegations that his constitutionally protected conduct was an
actual substantial or motivating factor for the retaliation. Moreover, the fact that plaintiff
may have engaged in constitutionally protected activity and was subsequently
disciplined or subjected to routine prison administrative procedures does not set forth a
claim for retaliation. If that were the case, any plaintiff who files a lawsuit and is later
disciplined could set forth a claim for retaliation.
With respect to Correctional Officer Harmer, plaintiff’s allegations that Harmer, as
the hearing examiner, found him guilty of two separate misconducts and sentenced him
accordingly, (ECF 52, ¶¶ 77, 81), simply do not amount to constitutional violations.
Even accepting plaintiff’s allegations as true, Harmer simply engaged in conduct which
was directly related to his duties as hearing examiner at CFCF. Such allegations are not
Finally, plaintiff’s allegations against PICC Warden Bryant fail for the same
reasons as those described above. Plaintiff contends that Bryant affirmed a finding that
he was guilty of a misconduct, failed to respond to an appeal he filed, and was involved
in directing his transfer to CFCF, (id., at ¶¶ 76, 78, 81, 83). As discussed, supra, such
conduct does not amount to a constitutional violation by Bryant. See Simonton, 437 F.
App’x at 62-63; Bradley, 2015 WL 6757022, at *7; Nichelson, 2000 WL 1599246, at *2 .
For all the foregoing reasons, the motion of the City of Philadelphia defendants
to dismiss is granted.
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