RIVERA v. NUTTER
MEMORANDUM THAT DEFTS' MOTION TO DISMISS PLFF'S COMPLAINT WILL BE GRANTED. PLFF. WILL BE GRANTED LEAVE TO AMEND HIS COMPLAINT. AN APPROPRIATE ORDER FOLLOWS.. SIGNED BY HONORABLE NORMA L. SHAPIRO ON 8/5/14. 8/6/14 ENTERED AND COPIES MAILED TO PRO SE PLFF., MAILED AND E-MAILED TO COUNSEL, 1 COPY TO LEGAL BIN.(pr, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
MAYOR MICHAEL NUTTER, WARDEN
OF CURRAN-FROMHOLD CORRECTIONAL :
FACILITY, and DEPUTY WARDEN OF P.P.S :
NORMA L. SHAPIRO, J.
AUGUST 5 , 2014
Before the court is defendants’ motion to dismiss plaintiff’s complaint. Plaintiff Jose
Rivera, out of custody when he filed this action, alleges that on November 13, 2011 and between
September 19, 2013 and November 18, 2013, he was housed in an overcrowded cell at CurranFromhold Correctional Facility. He claims that these conditions violate his constitutional rights.
Plaintiff brings this action under 42 U.S.C. § 1983. The court granted plaintiff’s application to
proceed in forma pauperis on December 5, 2013. On March 5, 2014, the City, on behalf of the
named defendants, filed a motion to dismiss. The motion is unopposed.
Plaintiff filed a handwritten complaint alleging counts against three defendants: Mayor
Michael Nutter, the warden of Curran-Fromhold Correctional Facility, and the deputy warden of
Curran-Fromhold Correctional Facility.1 Plaintiff alleges that during his incarceration within the
Philadelphia County Prison System he was placed in a three man cell, a two person cell with a
plastic boat on the floor for a third inmate, where he was forced to sleep on the boat.2 He alleges
The original complaint and amended complaint list Curran-Fromhold Correctional Facility as a defendant
on the second page. However, the Clerk of Court has not captioned the case with CFCF as a defendant.
See Williams v. City of Philadelphia, Civ. No. 08-1979, Docket No. 87. Actions for damages are excluded
from the waiver in the settlement agreement between plaintiffs in the class action settlement on behalf of all current
and future persons confined in the Philadelphia Prison System. Section X.A. states “plaintiffs do not waive their
that he was involved in fights due to the lack of space and that his food was stolen.
II. STANDARD OF REVIEW
Under Federal Rule of Civil Procedure 12(b)(6), a district court may dismiss all or part of
an action for failure to state a claim upon which relief can be granted. A complaint must contain
sufficient facts that, when accepted as true, state a claim that is plausible on its face. Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009); Bell Atlantic v. Twombly, 550 U.S. 544 (2007). A complaint is
facially plausible if it pleads “factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 663.
“Threadbare recitals of the elements of a cause of action, supported by mere conclusory
statements,” do not establish a plausible allegation. Id.
Section 1983 provides remedies for deprivations of rights established in the Constitution
or by federal law. To state a claim under § 1983, a plaintiff must demonstrate the defendant,
acting under color of state law, deprived him of a right secured by the Constitution or the laws of
the United States. Kaucher v. Cnty. of Bucks, 455 F.3d 418, 423 (3d Cir. 2006). If a plaintiff
brings suit against individual defendants, personal wrongdoing must be shown “through
allegations of personal direction or of actual knowledge and acquiescence.” Rode v.
Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988). The plaintiff must allege a defendant’s
personal involvement because a defendant cannot be held liable for a constitutional violation he
did not participate in or approve. Baraka v. McGreevey, 481 F.3d 187, 210 (3d Cir. 2007).
Plaintiff’s complaint appears to allege a Section 1983 claim for violations of his
rights to pursue individual claims for monetary damages under federal or state law.” All such actions have been
assigned to this court.
Fourteenth Amendment right of due process based on his housing conditions in the Philadelphia
Prison System. He alleges he was placed in a three man cell and forced to sleep on the boat. The
Supreme Court has determined “a detainee may not be punished prior to an adjudication of guilt
in accordance with the due process of law.”3 Bell v. Wolfish, 441 U.S. 520, 535 (1979).
However, plaintiff has failed to include any allegations that Mayor Nutter was personally
involved in the alleged deprivation of his constitutional rights or that he gave personal direction
for the plaintiff’s housing conditions. See Rode, 845 F.2d at 1207. Plaintiff has also failed to
include any allegations specific to the actions of the warden or deputy warden of CurranFromhold Correctional Facility. He only makes one statement regarding defendants’
involvement, “The Mayor Nutter and Warden, Deputy Warden made this happen.” This
conclusory statement is not sufficient to state a claim against individual defendants under Section
Defendants’ motion to dismiss plaintiff’s complaint will be granted. Plaintiff will be
granted leave to amend his complaint. An appropriate order follows.
Plaintiff does not allege that he is a pretrial detainee. However, since the court construes the facts in the
light most favorable to the plaintiff for purposes of this motion, the court will assume he had not been convicted
while in PPS custody.
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