I.Z. v. CITY OF PHILADELPHIA et al

Filing 18

MEMORANDUM AND ORDER THAT THE MOTION OF DEFENDANTS THE CITY OF PHILADELPHIA, BLANCHE CARNEY AND MICHELLE FARRELL TO DISMISS COUNT III OF THE COMPLAINT IS DENIED; ETC.. SIGNED BY HONORABLE HARVEY BARTLE, III ON 9/30/17. 9/30/17 ENTERED AND E-MAILED.(jl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
I.Z.
v.
CITY OF PHILADELPHIA, et al.

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CIVIL ACTION

NO. 17-1517

MEMORANDUM
Bartle, J.

October 30, 2017
Plaintiff I.Z. filed this lawsuit pursuant to

42 U.S.C. § 1983 and the First and Fourteenth Amendments of the
United States Constitution against defendants for improper
searches, retaliation, and excessive force. 1

Defendants include

the City of Philadelphia, Philadelphia Department of Prisons
Commissioner Blanche Carney, and Warden Michele Farrell. 2

Before

the court is the motion of these defendants to dismiss Count III
and Count VIII of the complaint under Rule 12(b)(6) of the
Federal Rules of Civil Procedure.

1. Plaintiff has filed this action using his initials only for
privacy reasons.
2. Plaintiff has also named as defendants the Deputy Warden,
Shift Commander, a nurse, and several correctional officers
employed at Riverside Correctional Facility. Defendants
Marcella Moore and Mariben Geonzon Gonzalez have been served but
have not joined in this motion or otherwise responded to the
complaint. The remaining defendants have not yet been served.

I.
When deciding a Rule 12(b)(6) motion, the court must
accept as true all factual allegations in the complaint and draw
all inferences in the light most favorable to the plaintiff.
See Phillips v. Cty. of Allegheny, 515 F.3d 224, 233 (3d Cir.
2008); Umland v. PLANCO Fin. Servs., Inc., 542 F.3d 59, 64
(3d Cir. 2008).

We must then determine whether the pleading at

issue “contain[s] 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 must do

more than raise a “mere possibility of misconduct.”

Fowler v.

UPMC Shadyside, 578 F.3d 203, 211 (3d Cir. 2009) (quoting Iqbal,
556 U.S. at 679).

Under this standard, “[t]hreadbare recitals

of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.”

Iqbal, 556 U.S. at 678.

II.
The following facts from plaintiff’s complaint are
taken as true for present purposes.

Plaintiff is a transgender

individual who was assigned the sex of female at birth but now
identifies as and lives as a man.

On or about November 6, 2016,

plaintiff was brought to the Riverside Correctional Facility as
a pretrial detainee.

Riverside is a facility within the

Philadelphia Prison System that houses women.
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At the time of his arrival at Riverside, plaintiff
informed prison staff that he is male.

He was then subjected to

three searches conducted specifically to determine his gender.
During the first search, plaintiff was instructed to remove all
clothing and spin around.

Plaintiff then underwent a second

search, wherein he was instructed to squat and cough while
naked.

Thereafter, a lieutenant or captain arrived and

questioned whether plaintiff had “the surgery” and whether he
had already been searched.

Plaintiff declined to answer whether

he had undergone surgery but responded that he had, in fact,
been searched twice already.

A sergeant then arrived and

escorted plaintiff to a nurse in the medical unit for a third
search.

The nurse conducted a penetrative genital examination

while I.Z. lay naked on a table with his legs spread.

As a

result of this search, the nurse and the observing sergeant
labeled plaintiff as female.

Afterwards plaintiff was informed

by a nurse that these genital searches are conducted as a
routine matter by the Philadelphia prison system to determine
gender identity.

Plaintiff was also informed that inmates are

sent to a male prison if they have a scrotum.
Plaintiff contends that Riverside prison staff
consistently misgendered him by referring to plaintiff as “she”
or “her” instead of “he” or “him.”

Plaintiff also alleges that

prison staff repeatedly made offensive and vulgar comments about
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his gender identity, including stating that “I’m not calling
[plaintiff] ‘he’ until she grows a dick,” referring to plaintiff
as “just a bitch with hair” and a “trannie,” and telling
plaintiff “[y]ou are in a women’s prison ma’am and you’re a
girl.”

Plaintiff filed grievances about these incidents as well

as the initial searches.

In retaliation for voicing his

complaints, plaintiff was denied shoes, threatened, subjected to
disciplinary action, and ultimately was pepper sprayed while
shackled and handcuffed.

Plaintiff alleges that he has suffered

physical and mental anguish, including post-traumatic stress
disorder, and a loss of dignity as a result of defendants’
actions.
III.
We turn first to defendants’ motion to dismiss Count
III of the complaint, which pertains only to the City of
Philadelphia, Commissioner Carney, and Warden Farrell.
Defendants first assert that plaintiff has failed to state a
claim for municipal liability against the city under Monell v.
New York City Department of Social Services, 436 U.S. 658
(1978).

According to defendants, plaintiff has merely set forth

conclusory allegations that paraphrase the elements of Monell
liability and has failed to make sufficient factual allegations
regarding the conduct of a municipal decision maker as required
under Monell.
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Section 1983 provides:
Every person who, under color of any
statute, ordinance, regulation, custom, or
usage, of any State . . . subjects, or
causes to be subjected, any citizen of the
United States . . . to the deprivation of
any rights, privileges, or immunities
secured by the Constitution and laws, shall
be liable to the party injured in an action
at law.
42 U.S.C. § 1983.

Under § 1983, a municipality may not be held

liable for constitutional violations on a vicarious liability
theory rooted in respondeat superior.
Berks, 706 F.3d 227, 237 (3d Cir.

Mulholland v. Cty. of

2013) (citing Andrews v. City

of Phila., 895 F.2d 1469, 1480 (3d Cir. 1990)).

Instead, a

municipality may be held responsible only “when the injury
inflicted is permitted under its adopted policy or custom.”

Id.

(quoting Beck v. City of Pittsburgh, 89 F.3d 966, 971
(3d Cir. 1996)).

Based on the Supreme Court’s reasoning in

Monell, courts have recognized a “two-path track” to municipal
liability under § 1983:
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. 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.

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Id. (quoting Andrews, 895 F.2d at 1480).

Custom may also be

established by “evidence of knowledge and acquiescence.”

Id.

(quoting Beck, 89 F.3d at 971).
In his complaint, plaintiff has claimed that he was
informed by a nurse at Riverside that genital searches are
conducted to determine gender identity as a routine practice and
that all inmates with scrotums are sent to male prisons.

The

complaint also alleges that plaintiff was subjected to
continuing oral harassment as well as retaliation for voicing
his complaints regarding the search and his treatment at
Riverside.

Plaintiff has alleged not the single action of a

rogue prison staff member, but rather a coordinated effort which
included prison staff at the supervisory level.

These

allegations are sufficient to state a claim of a municipal
policy or practice under Monell.
Defendants further assert that the claims against
defendants Carney and Farrell should be dismissed because
plaintiff failed to allege sufficiently that they were
personally involved in, or had actual knowledge of and
acquiescence in, the alleged wrongs.
845 F.2d 1195, 1207 (3d Cir. 1988).
the mark.

See Rode v. Dellarciprete,
Defendants’ argument misses

A municipality, like other entities, can act only

though individual employees or officers.
City v. Tuttle, 471 U.S. 808, 835 (1985).
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See City of Oklahoma
As discussed above,

under § 1983 the conduct of an employee or officer gives rise to
liability for a municipality only when that conduct implements
an official policy or practice.

See Monell, 436 U.S. at 690.

An individual’s conduct implements official policy or practice
under several circumstances, including when the individual is a
policymaker with final, unreviewable discretion to make a
decision or to take action.

Hill v. Borough of Kutztown,

455 F.3d 225, 245 (3d Cir. 2006); Andrews, 895 F.2d at 1481;
see also Keenan v. City of Phila., 983 F.2d 459, 468 (3d Cir.
1992).

As discussed above, Carney is the Commissioner of the

Philadelphia Prison System and Farrell is the Warden of
Riverside, the specific institution where plaintiff was
incarcerated.

Plaintiff has alleged that these defendants

implemented and maintained the policy or practice he challenges
regarding the search and classification of transgender inmates.
Accepting these allegations as true and drawing all reasonable
inferences in favor of plaintiff, as we must do on a motion to
dismiss, plaintiff has sufficiently alleged claims against
Carney and Farrell.
Defendants further challenge plaintiff’s claim that
defendants failed properly to train and supervise prison staff
to treat transgender inmates in a humane manner.

Defendants may

be liable for a failure to supervise or train staff only where
defendants acted with deliberate indifference.
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City of Canton

v. Harris, 489 U.S. 378, 392 (1989).

This can be shown through

the existence of a pattern of tortious conduct by inadequately
trained employees, or in some circumstances through a single
instance where there is a strong likelihood that the situation
will recur and that an officer lacking specific tools to handle
that situation will violate citizens’ rights.
Allegheny, 219 F.3d 261, 276 (3d Cir. 2000).

Berg v. Cty. of
Here, plaintiff

has alleged that improper searches of transgender inmates occur
as a matter of course.

Plaintiff has also alleged that he was

subjected to a campaign of harassment regarding his gender
identity by multiple staff members, in addition to repeated acts
of verbal reprimand and physical retaliation for voicing
grievances.

We find these allegations sufficient to allow

plaintiff to proceed under a failure to train theory.
Accordingly, the motion to dismiss Count III of the complaint
will be denied.
IV.
Finally, defendants have moved to dismiss Count VIII
of the complaint, which seeks to impose vicarious liability on
the City of Philadelphia for the state law torts of intentional
infliction of emotional distress, assault, and battery.

As

defendants correctly assert, these claims are barred by the
Political Subdivision Tort Claims Act, 42 Pa. Cons. Stat. Ann.
§ 8541 et seq.

Plaintiff has consented to dismissal of this
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count and therefore the motion of defendants will be granted as
to Count VIII.

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