BATISTA v. NUTTER et al

Filing 14

MEMORANDUM. SIGNED BY HONORABLE JEFFREY L. SCHMEHL ON 8/4/17. 8/8/17 ENTERED AND COPIES MAILED TO PRO SE, E-MAILED.(mas, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
NOEL BATISTA,
Plaintiff,
v.

CIVIL ACTION
NO. 15-4927

MAYOR MICHAEL NUTTER, et al.,
Defendants.
MEMORANDUM
SCHMEHL, J. /s/ JLS

AUGUST 4, 2017

Before this Court is Defendants’ Motion to Dismiss Plaintiff Noel Batista’s
Amended Complaint. Mr. Batista brings this action pro se under 42 U.S.C. § 1983
(“Section 1983”) alleging violations of his constitutional rights as a pre-trial detainee at
the Curran-Fromhold Correctional Facility (“CFCF”) within the Philadelphia Prison
System (“PPS”). Defendants moved to dismiss the amended complaint and Mr. Batista
filed a timely response. For the reasons below, the motion to dismiss is denied and Mr.
Batista is granted leave to amend the complaint.
I.

BACKGROUND
Prisoner Noel Batista asserts pro se claims against: Michael Nutter, former Mayor

of Philadelphia; Louis Gloria, former Commissioner of the Philadelphia Prison System;
Michele Farrell, former Warden of CFCF; Frederick Abello, Deputy Warden of CFCF;
and, the City of Philadelphia. Mr. Batista alleges violations of his First, Fifth, Eighth,
and Fourteenth Amendments due to the alleged triple-celling at CFCF.

Mr. Batista alleges the CFCF violated his constitutional rights when he was
“forced to live in a 7x10 cell with two other inmates” with the third inmate forced to
“sleep[ ] on a plastic ‘boat’ next to the cell’s toilet . . . exposed to urine and fecal matter.”
(ECF Docket No. 8, at 11.) This practice is often referred to as “triple-celling.” As a
result of the triple-celling, bacteria grew on Mr. Batista’s right foot and “the harsh
conditions of nearly continual lockdowns subject[ed] him to inadequate medical care and
‘risk of serious harm.’” (Id. at 4, 11.) The lockdowns “prevent[ed Batista] from
showering on a daily basis or maintain an otherwise clean appearance . . . [and]
prevent[ed] adequate sanitation of the cells, unit[,] and showers.” (Id.) The constant
lockdowns and restricted movement, Mr. Batista claims, were a result of the City’s
“deliberate failure to provide adequate staffing,” resulting in violations of city codes, fire
codes, personal space, and occupancy laws.
II.

LEGAL STANDARD
“To survive a motion to dismiss, a complaint must contain sufficient factual

matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570 (2007)). A claim satisfies the plausibility standard when the facts alleged “allow[]
the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Burtch v. Millberg Factors, Inc., 662 F.3d 212, 220-21 (3d Cir. 2011) (citing
Iqbal, 556 U.S. at 678). While the plausibility standard is not “akin to a ‘probability
requirement,’” there nevertheless must be more than a “sheer possibility that a defendant
has acted unlawfully.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556).
“Where a complaint pleads facts that are ‘merely consistent with’ a defendant's liability,

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it ‘stops short of the line between possibility and plausibility of entitlement to relief.’”
Id. (quoting Twombly, 550 U.S. at 557).
The Court of Appeals requires us to apply a three-step analysis under a 12(b)(6)
motion: (1) “it must ‘tak[e] note of the elements [the] plaintiff must plead to state a
claim;’” (2) “it should identify allegations that, ‘because they are no more than
conclusions, are not entitled to the assumption of truth;’” and, (3) “[w]hen there are wellpleaded factual allegations, [the] court should assume their veracity and then determine
whether they plausibly give rise to an entitlement for relief.” Connelly v. Lane
Construction Corp., 809 F.3d 780, 787 (3d Cir. 2016) (quoting Iqbal, 556 U.S. at 675,
679); see also Burtch, 662 F.3d at 221; Malleus v. George, 641 F.3d 560, 563 (3d. Cir.
2011); Santiago v. Warminster Township, 629 F.3d 121, 130 (3d. Cir. 2010).
Under Section 1983, liability is imposed on anyone who, acting under color of
state law, deprives a person of any “rights, privileges, or immunities” secured by the
Constitution, and provides a remedy for the deprivation of those rights. Blessing v.
Freestone, 520 U.S. 329, 340 (1997). Section 1983 requires the plaintiff demonstrate the
defendant deprived him or her of those right secured by the Constitution or the laws of
the United States. Kaucher v. County of Bucks, 455 F.3d 418, 423 (3d Cir. 2006).
Government officials may not be held liable under Section 1983 for the
unconstitutional conduct of their subordinates under respondeat superior. However, the
supervisor-defendant may be liable if: 1) the supervisor-defendant was personally
involved in the constitutional violation by participating in the violation, directing others
to commit the violation, or had actual knowledge of and acquiesced the violation; or 2)
the supervisor-defendant, “with deliberate indifference to the consequences, established

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and maintained a policy, practice or custom which directly caused the constitutional
harm.” Barkes v. First Correctional Medical, Inc., 766 F.3d 307, 316 (3d Cir. 2014),
rev’d on other grounds Taylor v Barkes, 135 S. Ct. 2042 (2015) (quoting A.M. ex rel.
J.M.K. v. Luzerne County Juvenile Detention Center, 372 F.3d 572, 586 (3d Cir. 2004)).
III.

TRIPLE-CELL
A pre-trial detainee has a reasonable desire to be as comfortable as possible

during confinement. Bell v. Wolfish, 441 U.S. 520, 534 (1979). A detainee’s condition
of confinement claim, which includes “triple-celling,” is examined under the Due Process
Clause of the Fourteenth Amendment to the United States Constitution. Id. at 535. A
condition of confinement is unconstitutional punishment if it results from an express
intent to punish or is not rationally related to a legitimate governmental purpose. Id. at
538-39. If the restriction or condition of confinement is “not reasonably related to a
legitimate goal – if it is arbitrary or purposeless – a court permissibly may infer that the
purpose of the governmental action is punishment that may not constitutionally be
inflicted upon detainees.” Id. (emphasis added).
Assessing the constitutionality of triple-celling requires determining whether
triple-celling is rationally related to the government’s purpose of managing overcrowded
prisons and looking to the “totality of the conditions” specific to the prison at issue.
Hubbard v. Taylor, 538 F.3d 229, 233 (3d Cir. 2008). The totality of the conditions
includes “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.
Defendants’ motion, however, does not address the constitutionality of triple-celling, nor
does it assess the merits of Mr. Batista’s substantive claims.

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Defendants argue against liability because Mr. Batista failed to allege any
personal involvement by the City or individual Defendants. (ECF Docket No. 9, at 2.)
Defendants contend Plaintiff merely parrots elements of Monell liability and fails to
identify a specific municipal policy or custom of triple-celling. Moreover, Defendants
argue Plaintiff has not set forth any such factual allegations regarding a custom or policy
by a specific policymaker. Defendants do not substantively address, however, whether
the supervisor-defendants may be liable if they, with deliberate indifference to causing a
constitutional harm, created or maintained a policy or custom of triple-celling.
Our court of appeals adopted a test to determine supervisor liability under Section
1983 for deliberate indifference to an unconstitutional policy or practice. “The plaintiff
must (1) identify the specific supervisory practice or procedures that the supervisor failed
to employ, and show that (2) the existing custom or 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) (citing Sample v. Diecks, 885 F.2d 1099, 1118 (3d Cir.
1989). The plaintiff must identify the acts or omissions of the supervisors showing
deliberate indifference and the relationship between the “identified deficiency” of a
policy or custom and the injury suffered. Id.
Construed liberally, Mr. Batista’s amended complaint alleges facts which could
potentially establish constitutional violations of triple-celling. Mr. Batista alleges the
overcrowding forced inmates into close proximity and increased the risk of infectious

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diseases, physical injury, and violence. (ECF Docket No. 8, at 11.) It is plausible that
the facts alleged could establish that other inmates at CFCF suffered similar deprivations,
creating a practice or custom within the prison. (emphasis added); see Grayson v.
Mayview State Hospital, 293 F.3d 103, 108 (3d Cir. 2002) (finding plaintiff’s complaint
did not “allege other inmates suffered similar deprivations . . . that might establish a
custom”) (citing Bielevicz v. Dubinon, 915 F.2d 845, 850 (3d Cir. 1990) (providing that
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)).
However, Mr. Batista’s amended complaint does not allege specific facts
establishing supervisor-defendants’ personal involvement in the alleged constitutional
violations. Although the amended complaint now includes “employees of the County of
Philadelphia (i.e. City Managing Director, Commissioner, and Warden of CFCF),”
merely listing supervisors and providing conclusory statements or their involvement
“under color of state law” is insufficient to allege supervisor liability under Monell and
Section 1983.
Notwithstanding the deficiencies, courts must provide pro se litigants more
flexible pleading standards than other litigants unless “it appears ‘beyond doubt that the
[pro se] plaintiff can prove no set of facts in support of his claim which would entitle him
to relief.’” Hamilton v. Jamieson, 355 F. Supp. 290, 298 (E.D. Pa. 1973); see also Wells
v. Brown, 891 F.2d 591, 592-94 (6th Cir. 1988) (collecting cases where courts have
required pro se litigants to adhere to basic pleading requirements). However deficient
Mr. Batista’s amended complaint appears, this Court cannot ignore his brief in response
to Defendants’ second motion to dismiss; specifically, Mr. Batista’s allegations against

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specific supervisor-defendants enforcing a custom or policy of triple-celling. However,
because Mr. Batista sets forth factual allegations regarding the conduct of specific
policymakers in his response brief and not the amended complaint, this Court cannot
construe Mr. Batista’s response as an extension of his amended complaint.
After a motion to dismiss has been filed, a District Court should inform a plaintiff
that he has leave to amend his complaint within a set period of time, unless an
amendment would be inequitable or futile. Grayson, 293 F.3d at 108. An amended
complaint alleging the facts asserted in Mr. Batista’s response to Defendants’ motion to
dismiss would not be considered inequitable or futile by this Court. Accordingly, the
motion to dismiss is denied and Mr. Batista is granted leave to amend the complaint with
respect to his triple-celling claim.

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