HARPER v. ALBIA et al
MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE THOMAS N. ONEILL, JR ON 8/24/11. 8/25/11 ENTERED AND COPIES MAILED TO PRO SE AND E-MAILED TO COUNSEL.(lvj, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
JEFFERY ALBO , et al.
AUGUST 24, 2011
Pro se plaintiff John Harper is a state prisoner currently incarcerated at the State
Correctional Institution at Frackville. On January 4, 2011, plaintiff filed this lawsuit against
Community Corrections Center at Allentown employees Jeffery Albo1 and Jamie Luquis.2 In his
complaint, plaintiff alleges that defendants violated his Eighth Amendment right to be free from
cruel and unusual punishment. Presently before me are defendants’ motion to dismiss and
In plaintiff’s complaint, defendant Albo’s name is spelled “Albio” and defendant
Luquis’s name is spelled “Luquise.” Am. Comp. at 1. I will order the Clerk to amend the
docket to reflect the proper spelling of each defendant’s name.
Plaintiff filed an amended complaint on January 14, 2011.
Plaintiff filed a response to defendants’ motion that in part consisted of an
affidavit containing a more detailed account of the allegations in the complaint. In deciding a
motion to dismiss, it is within my discretion whether to consider evidence outside the complaint.
Kulwicki v. Dawson, 969 F.2d 1454, 1462 (3d Cir. 1992). Since the plaintiff’s complaint
standing alone states a claim for relief and, as I discuss more fully in footnote seven, the
allegations in plaintiff’s affidavit do not support his claim against defendant Luquis, I will not
consider the plaintiff’s affidavit.
Plaintiff was incarcerated at CCC Allentown in February 2010. Am. Compl. at 4.4
Approximately two weeks before the events that gave rise to this suit, defendant Albo, a
counselor at CCC Allentown, called plaintiff into his office. Id. Albo informed plaintiff that he
would likely be a target of the “Bloods” street gang. Id. He also asked whether plaintiff knew of
any inmates currently being recruited by the gang. Id. Plaintiff responded in the negative. Id.
Approximately two weeks after the conversation with Albo, plaintiff was assaulted by
Alvin Davis, another inmate incarcerated at CCC Allentown. Id. According to plaintiff, Davis
was either a current member of the Bloods gang or was being initiated into the gang at the time
of the assault. Id. As a result of the attack, plaintiff alleges that he broke his hand and suffers
from impaired vision in his left eye. Id.
On February 19, 2010, plaintiff was transferred to SCI-Frackville by “agent Anthony
Mondello.” Id. at 3. There, in an attempt to report what he viewed as misconduct by Albo,
plaintiff asked the correctional officer on duty for a grievance form. Id. The officer informed
plaintiff that the prison had run out of grievance forms. Id. Plaintiff repeated his request for a
grievance form every day for the next thirty days. Id. Each time, prison officials denied his
request. Id. Plaintiff alleges that he stopped requesting a grievance form after correctional
officers informed him that it was too late to file a grievance. Id.
STANDARD OF REVIEW
Federal Rule of Civil Procedure 12(b)(6) permits a court to dismiss all or part of an
action for “failure to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6).
The factual allegations in plaintiff’s amended complaint are primarily contained
in one paragraph entitled “Statement of claim.”
Typically, “a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed
factual allegations,” though plaintiff’s obligation to state the grounds of entitlement to relief
“requires more than labels and conclusions, and a formulaic recitation of the elements of a cause
of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). “Factual
allegations must be enough to raise a right to relief above the speculative level on the assumption
that all of the allegations in the complaint are true (even if doubtful in fact).” Id. (citations
omitted). The complaint must state “‘enough facts to raise a reasonable expectation that
discovery will reveal evidence of’ the necessary element.” Wilkerson v. New Media Tech.
Charter School Inc., 522 F.3d 315, 321 (3d Cir. 2008), quoting Twombly, 550 U.S. at 556. The
Court of Appeals has recently made clear that after Ashcroft v. Iqbal, --- U.S. ---, 129 S. Ct.
1937, 1955, 173 L. Ed. 2d 868 (2009), “conclusory or ‘bare-bones’ allegations will no longer
survive a motion to dismiss: ‘threadbare recitals of the elements of a cause of action, supported
by mere conclusory statements, do not suffice.’ To prevent dismissal, all civil complaints must
now set out ‘sufficient factual matter’ to show that the claim is facially plausible.” Fowler v.
UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009), quoting Iqbal, 129 S. Ct. at 1949. The
Court also set forth a two part-analysis for reviewing motions to dismiss in light of Twombly
and Iqbal: “First, the factual and legal elements of a claim should be separated. The District
Court must accept all of the complaint’s well-pleaded facts as true, but may disregard any legal
conclusions. Second, a District Court must then determine whether the facts alleged in the
complaint are sufficient to show that the plaintiff has a ‘plausible claim for relief.’” Id. at 21011, quoting Iqbal, 129 S. Ct. at 1950. The Court explained, “a complaint must do more than
allege the plaintiff’s entitlement to relief. A complaint has to ‘show’ such an entitlement with its
facts.” Id., citing Phillips v. Cnty. of Allegheny, 515 F.3d 224, 234-35 (3d Cir. 2008). “Where
the well-pleaded facts do not permit the court to infer more than the mere possibility of
misconduct, the complaint has alleged–but it has not ‘show[n]’–‘that the pleader is entitled to
relief.’” Iqbal, 129 S. Ct. at 1949.
Additionally, pleadings that are pro se must be held to “less stringent standards than
formal pleadings drafted by lawyers.” Dickerson v. Brooks, No. 06-289, 2007 WL 4689001, at
*2 (W.D. Pa. Oct. 31, 2007), citing Haines v. Kerner, 404 U.S. 519, 520-521 (1972); United
States ex rel. Montgomery v. Bierley, 141 F.2d 552, 555 (3d Cir. 1969), noting that a petition
prepared by a prisoner may be inartfully drawn and should be read “with a measure of
tolerance.” Pro se complaints, especially from civil rights plaintiffs, should be read liberally, as
prisoners in particular are often at an informational disadvantage that may prevent them from
pleading the full factual predicate for their claims. Alston v. Parker, 363 F.3d 229, 233-34 &
n.6 (3d Cir. 2004). Because this plaintiff is a pro se litigant, I will consider his allegations of fact
and make inferences where it is necessary and appropriate.
Defendants argue that the complaint should be dismissed for several reasons. First, both
defendants assert that they are immune from civil rights claims brought under 42 U.S.C. § 1983.
Second, they argue that the complaint does not allege deliberate indifference. Third, they argue
that plaintiff’s claims should be dismissed for failure to exhaust the available administrative
remedies because plaintiff did not file a grievance with respect to the injury he suffered at CCC
Allentown. Finally, defendant Luquis argues that the claims against him must be dismissed
because they are based on the legally impermissible theory of respondeat superior.
The Claims Against Defendants in Their Official Capacity Will Be Dismissed
Defendants argue first that plaintiff’s claims against them in their official capacity must
be dismissed.5 The Eleventh Amendment provides that “the judicial power of the United States
shall not be construed to extend to any suit in law or equity, commenced or prosecuted against
one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign
State.” U.S. Const. amend. XI. Simply stated, “state governments . . . are immune from suit in
federal court under the Eleventh Amendment.” Betts v. New Castle Youth Devel. Ctr., 621 F.3d
249, 253-54 (3d Cir. 2010). “State sovereign immunity extends to subsidiary units and
individual state employees sued in their official capacity.” Druz v. Noto, 415 F. App’x 444, 446
(3d Cir. 2011). “A suit against a state official in his or her official capacity is not a suit against
the official but rather is a suit against the official’s office.” Will v. Mich. Dept. of State Police,
491 U.S. 58, 71 (1989). “As such, it is no different from a suit against the State itself.” Id.,
citing Ky. v. Graham, 473 U.S. 159, 165-66 (1985).
“Eleventh Amendment immunity is, however, subject to three primary exceptions: (1)
Congressional abrogation, (2) waiver by the state and (3) suits against individual officers for
prospective injunctive and declaratory relief to end an ongoing violation of federal law.” Pa.
Fed’n of Sportsmen’s Clubs, Inc. v. Hess, 297 F.3d 310, 323 (3d Cir. 2002), citing MCI
Telecomm. Corp. v. Bell Atl.-Pa., 271 F.3d 491, 503 (3d Cir. 2001). The Court of Appeals has
held that none of these exceptions apply to prison officials acting in their official capacity. See
Plaintiff does not specify in his complaint whether he is suing defendants in their
official or individual capacity. Because the plaintiff is a pro se litigant, his complaint is “to be
liberally construed” and “held to less stringent standards than formal pleadings drafted by
lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007), quoting Estelle v. Gamble, 429 U.S. 97,
106 (1976). Therefore, I interpret his complaint as alleging claims against defendants in both
Walker v. Zenk, 323 F. App’x 144, 148 (3d Cir. 2009) (affirming the denial of plaintiff’s motion
to amend his complaint because claims against Bureau of Prison employees in their official
capacity “would remain barred by sovereign immunity.”); Durham v. Dept. of Corr., 173 F.
App’x 154, 156 (3d Cir. 2006) (affirming District Court’s dismissal of Department of Correction
employees to the extent that they were sued in their official capacities).
First, Congress did not “abrogate the Commonwealth’s Eleventh Amendment
immunity” by passing section 1983. Cook v. Floyd, 398 F. App’x 702, 703 (3d Cir. 2010);
accord Quern v. Jordan, 440 U.S. 332, 345 (1979) (“section 1983 does not explicitly and by clear
language indicate on its face an intent to sweep away the immunity of the States; nor does it
have a history which focuses directly on the question of state liability and which shows that
Congress considered and firmly decided to abrogate the Eleventh Amendment immunity of the
States.”). Second, the allegations in plaintiff’s complaint “do not fall under any one of the nine
listed categories for which immunity has been waived by the Commonwealth of Pennsylvania.”
Durham, 173 F. App’x at 157; see 42 Pa. Cons. Stat. Ann. § 8522(b).6 Finally, the third
exception does not apply because plaintiff does not seek prospective injunctive relief. See
McCauley v. Univ. of the V.I., 618 F.3d 232, 240-41 (3d Cir. 2010) (holding that plaintiff
“cannot seek money damages against [defendants in their official capacities]” and “may only
seek prospective injunctive relief.”).
The nine exceptions to sovereign immunity set forth in section 1983 are: (1)
vehicle liability; (2) medical-professional liability; (3) care, custody or control of personal
property; (4) commonwealth real estate, highways and sidewalks; (5) potholes and other
dangerous conditions; (6) care, custody or control of animals; (7) liquor store sales; (8) national
guard activities; (9) taxoids and vaccines. 42 Pa. Cons. Stat. Ann. § 8522(b).
In light of the foregoing, I will dismiss plaintiff’s claims against Albo and Luquis in their
Plaintiff’s Claims Against Defendants in their Individual Capacities
“Under Section 1983 every person who, acting under color of state law, ‘subjects or
causes to be subjected’ another person to a deprivation of a federally secured right is liable for
that transgression.” Sample v. Diecks, 885 F.2d 1099, 1113 (3d Cir. 1989), quoting 42 U.S.C. §
1983. A state actor may be liable under section 1983 in either of two ways. See id., citing
Monell v. N.Y. City Dept. of Soc. Servs., 436 U.S. 658, 691-92 (1978).
First, a state actor may be liable when he “subjects” an individual to a constitutional
violation. See id. Where a prisoner alleges that a prison official has violated his Eighth
Amendment rights, the prisoner must show that the prison official acted with deliberate
indifference to a substantial risk of serious harm. Farmer v. Brennan, 511 U.S. 825, 828 (1994).
“Deliberate indifference can be shown when a prison official knows of and disregards an
excessive risk to inmate health or safety.” Hamilton v. Leavy, 117 F.3d 742, 747 (3d Cir. 1997)
(internal quotations omitted), citing Farmer, 511 U.S. at 837. Under this standard, a prison
official may not escape liability “by showing that, while he was aware of an obvious, substantial
risk to inmate safety, he did not know that the complainant was especially likely to be assaulted
by the specific prisoner who eventually committed the assault.” Farmer, 511 U.S. at 843. On
the other hand, however, “prison officials who act reasonably cannot be found liable under the
[Eighth Amendment].” Heefran v. Mellinger, 324 F. App’x 176, 179 (3d Cir. 2009) (internal
quotations committed), citing Farmer, 511 U.S. at 835.
Second, a state actor may be liable “for someone else’s constitutional tort, that is, for
‘causing’ the plaintiff to be subjected to the constitutional violation.” Sample, 885 F.2d at 1113.
To show that the defendant caused the alleged constitutional violation, “the plaintiff must
identify a specific policy or practice that the supervisor failed to employ . . . .” Beers-Capitol v.
Whetzel, 256 F.3d 120, 133 (3d Cir. 2001). In Sample, the Court of Appeals adopted a four part
test to determine when a supervisor’s “policies or practices led to an Eighth Amendment
violation.” Id., citing Sample, 885 F.2d at 1118. Under Sample a plaintiff must show that: “(1)
the existing policy or practice created an unreasonable risk of the Eighth Amendment injury; (2)
the supervisor was aware that the unreasonable risk was created; (3) the supervisor was
indifferent to that risk; and (4) the injury resulted from the policy or practice.” Id., citing
Sample, 885 F.2d at 1118.
Plaintiff’s Complaint Does Not State a Claim Against Luquis
Luquis asserts that plaintiff’s complaint contains no allegations that Luquis had any
personal involvement or knowledge of the events underlying the allegations. See Def.’s Br. at 9.
I agree. Plaintiff’s complaint contain no allegations that Luquis knew of and disregarded a
substantial risk of serious harm to plaintiff or that Luquis adopted a policy or practice that
violated plaintiff’s Eighth Amendment rights. Indeed, the only reference to Luquis is in the
caption. See Am. Compl. at 1. Therefore, I agree with Luquis that plaintiff has failed to allege
sufficient facts to hold him liable.7
In plaintiff’s affidavit, he claims that Luquis is the director of CCC Allentown
and “knows everything that takes place or goes on at the Allentown Community Corrections
Center.” He also claims that Luquis is “legally responsible for the overall health and welfare of
the residents/imate (sic) there at [CCC Allentown].” Pl.’s Aff. at 7. Even if I were to consider
the allegations in plaintiff’s affidavit, I find that these allegations do not state a claim under
section 1983 because “[an individual government] defendant in a civil rights action must have
personal involvement in the alleged wrongdoing; liability cannot be predicated solely on the
Plaintiff’s Complaint States a Claim Against Albo
Plaintiff alleges that Albo was deliberately indifferent to a risk of serious harm to
plaintiff. He argues that Albo had actual knowledge of the risk plaintiff faced from the Bloods
and disregarded that risk by not transferring plaintiff to another prison. Am. Compl. at 4.
Albo disagrees. He does not dispute that he had knowledge that plaintiff faced a
substantial risk of serious harm from the Bloods. Instead, Albo argues that he cannot be held
liable because he did not know that Davis in particular was a member of the Bloods or posed a
risk to plaintiff. See Def.’s Br. at 11. The question before me is whether deliberate indifference
can be predicated on knowledge of a general risk from a gang where the eventual assailant was
an unknown member of that gang.
Courts have recognized that a prison official can violate an inmate’s Eighth Amendment
rights by failing to protect the inmate against a threat of physical violence even when the identity
of the eventual assailant is not known in advance. See Farmer, 511 U.S. at 843; accord Brown v.
Budz, 398 F.3d 904, 915 (7th Cir. 2005) (“deliberate indifference can be predicated upon
knowledge of a victim’s particular vulnerability, though the identity of the ultimate assailant [is]
not known in advance of [the] attack . . . .”). This is especially true where an inmate is “a
member of an identifiable group of prisoners for whom risk of assault [is] a serious problem.”
Langston v. Peters, 100 F.3d 1235, 1239 (7th Cir. 1996), quoting Walsh v. Mellas, 837 F.2d 789
(7th Cir. 1988). In Walsh, for example, the plaintiff inmate assisted in defending prison officials
against a violent attack by incarcerated members of a street gang. Walsh, 837 F.2d at 792. The
operation of respondeat superior.” Evancho v. Fisher, 423 F.3d 347, 353 (3d Cir. 2005).
I will grant plaintiff leave to amend his complaint with respect to his claims against
Luquis. He is advised, however, that if he chooses to do so he must allege facts demonstrating
that Luquis was personally involved in the deprivation of his rights.
Court held that the plaintiff’s actions placed him in a class of inmates “for whom the risk of
assault was a serious problem of substantial dimensions.” Id. at 797. He was released from
prison shortly after the incident but reincarcerated several years later. Id. at 792. Over the
plaintiff’s objections, prison officials placed him in a cell with a member of the same street
gang–although at trial the officials claimed that they were unaware of plaintiff’s cellmate’s gang
affiliation. Id. Within hours, the plaintiff’s new cellmate stabbed and strangled the plaintiff into
unconsciousness. Id. The Court of Appeals held that under such circumstances plaintiff was
entitled to bring suit under section 1983. Id.
Courts in this Circuit have reached similar conclusions with respect to inmates labeled as
“snitches.” See, e.g., Blizzard v. Quillen, 579 F. Supp. 1446, 1451 (D. Del. 1984) (holding that
“a well-known generalized threat to an inmate could create a duty to protect” an inmate labeled a
snitch.) In Hamilton, the Court of Appeals held that the defendant prison official acted with
deliberate indifference where he kept the plaintiff in the general population despite knowing that
he had been labeled a snitch and, as a result, had a long history of being assaulted in the
Delaware prison system. 117 F.3d at 745. The Court did not require the plaintiff to provide
evidence that the defendant had specific knowledge that the assailant posed a risk to the plaintiff.
Id. at 746; see also Cuciak v. Bd. of Chosen Freeholders, No. 05-2658, 2005 WL 2217015 at *34 (D.N.J. Sep. 6, 2005) (finding that evidence that the defendant prison official knew that the
plaintiff faced a general risk in his housing unit from gang members was sufficient to support a
finding of deliberate indifference.)
If proven, the allegations contained in plaintiff’s complaint demonstrate that Albo knew
that plaintiff was especially vulnerable to assault by the Bloods. Albo also knew that requiring
plaintiff to remain in the general population would expose plaintiff to the possibility of such
assault. In light of the fact that plaintiff in proceeding pro se, I find that plaintiff hasalleged
sufficient facts, albeit barely, to survive the present motion to dismiss.
Plaintiff Has Exhausted His Administrative Remedies
Defendants also argue that plaintiff has not exhausted his administrative remedies. The
Prison Litigation Reform Act provides that “[n]o action shall be brought with respect to prison
conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in
any jail, prison, or other correctional facility until such administrative remedies as are available
are exhausted.” 42 U.S.C. §1197e(a). “Proper exhaustion of administrative remedies requires
filing a timely or otherwise procedurally non-defective grievance.” Daniels v. Rosenberger, 386
F. App’x 27, 29 (3d Cir. 2010), citing Woodford v. Ngo, 548 U.S. 81, 83-84 (2006) (defining
proper exhaustion as “using all steps that the agency holds out, and doing so properly . . . .”).
Failure to exhaust is an affirmative defense to be pled and proven by the defendant. See Ray v.
Kertes, 285 F.3d 287, 295 (3d Cir. 2002) (recognizing that prison officials and their attorneys
can “readily provide the court with clear, typed explanations . . . of relevant administrative
regulations,” while “[p]ro se prisoners will often lack even such rudimentary resources.”)
“The PLRA does not require exhaustion of all remedies.” Brown v. Croak, 312 F.3d
109, 110 (3d Cir. 2002). “Rather, it requires exhaustion of such administrative remedies ‘as are
available.’” Id., quoting Camp v. Brennan, 219 F.3d 279, 281 (3d Cir. 2000). An available
remedy is on that is “capable of use; at hand.” Id. at 113. Conversely, “[w]e have previously
held that erroneous instructions or other impediments to pursuing administrative relief may
render those remedies ‘unavailable’ for the purposes of section 1997e(a), and can potentially
excuse a failure to comply therewith.” Toney v. Bledsoe, No. 10-3471, 2011 WL 1828380, at *3
(3d Cir. May 13, 2011); accord Miller v. Norris, 247 F.3d 736, 740 (8th Cir. 2001) (“[A] remedy
that prison officials prevent a prisoner from ‘utilizing’ is not an ‘available’ remedy under section
1997(e)(a) . . . .”).
I find Brown to be instructive on this point. There, the plaintiff alleged that prison
officials informed him that he was not allowed to file a grievance until after a pre-grievance
investigation was completed and then “indefinitely delayed completion of the investigation.”
Brown, 312 F.3d at 110. The defendants moved to dismiss on the basis that the plaintiff had not
properly exhausted his administrative remedies. They asserted that the plaintiff did not file an
initial grievance as required under the prison’s three-tier grievance policy. Id. The Court denied
the defendant’s motion and held that “the formal grievance proceeding . . . was never ‘available’
to [the plaintiff] within the meaning of 42 U.S.C. §1197e.” Id. at 112.
In the present case, defendants argue that because plaintiff never filed “any grievances in
regard to the fighting incident at CCC Allentown,” he failed to exhaust his administrative
remedies. See Def.’s Br. at 14. I disagree. In plaintiff’s complaint he alleges that he asked for
grievance forms every day, for thirty days, and was repeatedly denied by officials who told him
that the prison had no more grievance forms left. See Pl.’s Br. at 3. If these allegations are true,
a reasonable jury could conclude that the administrative remedies at the prison were not
available to plaintiff. Miller, 247 F.3d at 740 (“While we do not resolve at this time the question
of whether [the plaintiff], in fact, complied with § 1997e(a), we conclude that the allegations in
his motion to reinstate were sufficient to raise an inference that he had exhausted his ‘available’
The claims against defendants in their official capacities will be dismissed with
prejudice. The claim against Jamie Luquis in his individual capacity will be dismissed with
leave to amend. In all other respects, defendants’ motions to dismiss will be denied.
An appropriate Order follows.
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