CORTEZ v. BERKS COUNTY JAIL SYSTEM et al

Filing 5

MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE KAREN S. MARSTON ON 8/24/21. 8/24/21 ENTERED AND COPIES MAILED TO PRO SE PLFF AND WARDEN OF BERKS COUNTY JAIL SYSTEM AND BLANK COPY OF COMPLAINT MAILED TO PRO SE PLFF. (kw, )

Case 5:21-cv-03450-KSM Document 5 Filed 08/24/21 Page 1 of 9

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
MICHAEL CORTEZ,
Plaintiff,

:
:
:
v.
:
:
BERKS COUNTY JAIL SYSTEM, et al. :
Defendants.
:

CIVIL ACTION NO. 21-CV-3450

MEMORANDUM
MARSTON, J.

August 24, 2021

Plaintiff Michael Cortez, a pretrial detainee currently incarcerated at Berks County
Prison, filed this civil action alleging a violation of his civil rights. Named as Defendants are the
Berks County Jail System; J. Quigley, Warden; Medical Administrator Captain; and Officer
Murray. (Doc. No. 1.) Cortez also seeks leave to proceed in forma pauperis. For the following
reasons, the Court will grant the application to proceed in forma pauperis and dismiss Cortez’s
Complaint without prejudice for failure to state a claim pursuant to 28 U.S.C. §
1915(e)(2)(B)(ii). Cortez will be granted leave to file an amended complaint.
I.

FACTUAL ALLEGATIONS1
The allegations in Cortez’s Complaint are brief. He contends that “[i]t happen[ed] on D

Block in Berks County Jail coming back for shower. Officer Murray pushed me forward and
wiplashed [sic] my neck causing me severe pain and later had to go to physical therapy.” (Doc.
No. 1 at 4.)2 Cortez also claims that he “wrote a grievance to address the issue [because] this
wasn’t the first time this officer assaulted me but I had it on camera now.” (Id. at 5.) The

1

The factual allegations are taken from Cortez’s Complaint.

2

The Court adopts that pagination supplied by the CM/ECF docketing system.

Case 5:21-cv-03450-KSM Document 5 Filed 08/24/21 Page 2 of 9

grievance was denied. (Id.) Cortez alleges that “the officer continued to take things out of my
food so I filed an appeal” on August 27, 2020.3 (Id.) X-rays were taken of Cortez’s neck, he
was told “something was wrong,” and was taken “to an outside clinic” for further evaluation.
(Id.) Cortez was given pain medication and prescribed physical therapy for his injuries. (Id.)
He alleges that he did not receive physical therapy until “a year later” and this delay aggravated
his injuries. (Id.) He seeks monetary damages for the physical and psychological injuries he
suffered. (Id.)
II.

STANDARD OF REVIEW
The Court grants Cortez leave to proceed in forma pauperis because it appears that he is

incapable of paying the fees to commence this civil action.4 Accordingly, 28 U.S.C. §
1915(e)(2)(B)(ii) applies, which requires the Court to dismiss the Complaint if it fails to state a
claim. Whether a complaint fails to state a claim under § 1915(e)(2)(B)(ii) is governed by the
same standard applicable to motions to dismiss under Federal Rule of Civil Procedure 12(b)(6),
see Tourscher v. McCullough, 184 F.3d 236, 240 (3d Cir. 1999), which requires the Court to
determine whether the complaint contains “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)
(quotations omitted). Conclusory allegations do not suffice. Id. As Cortez is proceeding pro se,

3

Cortez is uncertain of the date of the underlying event because “Officer Murray took the copy of my
first grievance when I went to the shower.” (Doc. No. 1 at 5.) The Court will assume for purposes of
statutory screening only that the underlying event occurred within the two-year limitation period
applicable to this action. See Kach v. Hose, 589 F.3d 626, 634 (3d Cir. 2009) (the timeliness of a § 1983
claim is governed by the limitations period applicable to personal injury actions of the state where the
cause of action arose); 42 Pa. Cons. Stat. § 5524(2) (providing a two- year limitations period for a
personal injury actions).
4

However, as Cortez is a prisoner, he will be obligated to pay the filing fee in installments in accordance
with the Prison Litigation Reform Act. See 28 U.S.C. § 1915(b).

2

Case 5:21-cv-03450-KSM Document 5 Filed 08/24/21 Page 3 of 9

the Court construes his allegations liberally. Higgs v. Att’y Gen., 655 F.3d 333, 339 (3d Cir.
2011); Vogt v. Wetzel, No. 18-2622, 2021 WL 3482913, at *2 (3d Cir. Aug. 9, 2021)
(citing Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 244-45 (3d Cir. 2013)). “This means we
remain flexible, especially ‘when dealing with imprisoned pro se litigants[.]’” Vogt, 2021 WL
3482913, at *2 (quoting Mala, 704 F. 3d at 244). The Court will “apply the relevant legal
principle even when the complaint has failed to name it.” Id. However, ‘“pro se litigants still
must allege sufficient facts in their complaints to support a claim.’” Vogt, 2021 WL 3482913, at
*2 (quoting Mala, 704 F. 3d at 245).
III.

DISCUSSION
The vehicle by which federal constitutional claims may be brought in federal court is

Section 1983 of Title 42 of the United States Code, which provides in part:
Every person who, under color of any statute, ordinance, regulation, custom, or
usage, of any State or Territory or the District of Columbia, subjects, or causes to
be subjected, any citizen of the United States or other person within the jurisdiction
thereof 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, suit in
equity, or other proper proceeding for redress.
42 U.S.C. § 1983. “To state a claim under § 1983, a plaintiff must allege the violation of a right
secured by the Constitution and laws of the United States, and must show that the alleged
deprivation was committed by a person acting under color of state law.” West v. Atkins, 487 U.S.
42, 48 (1988).
The Court understands Cortez to be asserting an excessive force claim under the
Fourteenth Amendment. Liberally construing the Complaint, he may also be pursuing a claim
for deliberate indifference to his serious medical needs under the Fourteenth Amendment based

3

Case 5:21-cv-03450-KSM Document 5 Filed 08/24/21 Page 4 of 9

on a delay in receiving physical therapy for his injuries. For the following reasons, these claims
are not plausible as pled.5
A.

Defendant Berks County Jail System

Cortez names the Berks County Jail System in the caption of his Complaint, but does not
include it in the list of Defendants on pages 2–3 of the form or assert any factual allegations
concerning Berks County Jail System. To the extent this may be interpreted to mean that Cortez
seeks to bring a § 1983 claim against Berks County Jail System, that claim must be dismissed.
The Berks County Jail System is not a “person” under Section 1983. Cephas v. George W. Hill
Corr. Facility, Civ. A. No. 09-6014, 2010 WL 2854149, at *1 (E.D. Pa. July 20, 2010); see also
Lenhart v. Pennsylvania, 528 F. App’x 111, 114 (3d Cir. 2013); Miller v. Curran-Fromhold
Corr. Facility, Civ. A. No. 13-7680, 2014 WL 4055846, at *2 (E.D. Pa. Aug. 13, 2014) (citing
Mitchell v. Chester Cty. Farms Prison, 426 F. Supp. 271 (E.D. Pa. 1976)).
B.

Official Capacity Claims

Cortez only checked the box on the form complaint indicating that he seeks to name each
of the Defendants in his official capacity. Official capacity claims are indistinguishable from
claims against the entity that employs the officials. See Kentucky v. Graham, 473 U.S. 159, 165–
66 (1985) (“Official-capacity suits . . . ‘generally represent only another way of pleading an
action against an entity of which an officer is an agent.’”) (quoting Monell v. Dept. of Soc. Servs.
of New York City, 436 U.S. 658, 690, n.55 (1978)). Thus, “an official-capacity suit is, in all

5

Because Cortez was a pretrial detainee during all relevant times, the Due Process Clause of the
Fourteenth Amendment governs his excessive force claim and any inadequate medical care claim raised
herein. See Kingsley v. Hendrickson, 576 U.S. 389, 397 (2015) (“[T]he Due Process Clause protects a
pretrial detainee from the use of excessive force that amounts to punishment.” (internal quotation and
citation omitted)); Moore v. Luffey, 767 F. App’x 335, 340 (3d Cir. 2019) (analyzing pretrial detainee’s
inadequate medical care claim under same deliberate indifference standard used to evaluate similar claims
brought under the Eighth Amendment).

4

Case 5:21-cv-03450-KSM Document 5 Filed 08/24/21 Page 5 of 9

respects other than name, to be treated as a suit against the entity.” Id. Accordingly, Cortez’s
official capacity claims against employees and officials of Berks County Jail System are
essentially claims against the employing municipality, Berks County.
To state a claim for municipal liability, a plaintiff must allege that the defendant’s
policies or customs caused the alleged constitutional violation. See Monell, 436 U.S. at 694;
Natale v. Camden Cty. Corr. Facility, 318 F.3d 575, 583–84 (3d Cir. 2003). “To satisfy the
pleading standard, [the plaintiff] must . . . specify what exactly that custom or policy was.”
McTernan v. City of York, Pennsylvania, 564 F.3d 636, 658 (3d Cir. 2009). “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.” Estate of Roman v. City of Newark,
914 F.3d 789, 798 (3d Cir. 2019) (quoting Andrews v. City of Philadelphia, 895 F.2d 1469, 1480
(3d Cir. 1990)). “Custom, on the other hand, can be proven by showing that a given course of
conduct, although not specifically endorsed or authorized by law, is so well-settled and
permanent as virtually to constitute law.” Id. (quoting Bielevicz v. Dubinon, 915 F.2d 845, 850
(3d Cir. 1990)). For a custom to be the proximate cause of an injury, the municipality must have
“had knowledge of similar unlawful conduct in the past, failed to take precautions against future
violations, and that its failure, at least in part, led to his injury.” Id. (internal quotations and
alterations omitted). Nothing in the Complaint alleges that the conduct of which Cortez
complains was the result of a municipal policy or custom.
Accordingly, Cortez has failed to state plausible official capacity claims against the
Defendants and his Complaint must be dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii). The
Court cannot say, however, that Cortez can never state a plausible § 1983 claim based upon the
incident he describes in his Complaint and he will be granted leave to file an amended complaint.

5

Case 5:21-cv-03450-KSM Document 5 Filed 08/24/21 Page 6 of 9

Cortez should be mindful that his Complaint is deficient for other reasons as well as discussed
below.
C.

Individual Capacity Claims
1.

Defendant Warden Quigley

Even if Cortez had intended to sue Defendant Warden Quigley in his individual capacity,
there are no allegations in the Complaint against him. “A defendant in a civil rights action must
have personal involvement in the alleged wrongs” to be liable. See Rode v. Dellarciprete, 845
F.2d 1195, 1207 (3d Cir. 1988). “Personal involvement requires particular ‘allegations of
personal direction or of actual knowledge and acquiescence.’” Dooley v. Wetzel, 957 F.3d 366,
374 (3d Cir. 2020) (quoting Rode, 845 F.2d at 1207). Other than Defendant Murray, Cortez does
not allege any act by a named Defendant. There are no allegations in the Complaint regarding
how Defendant Quigley was the cause of the use of excessive force or Defendant Quigley’s
involvement with Cortez’s medical care. Thus, the Complaint fails to state a plausible
constitutional claim against Defendant Quigley in his individual capacity.6
2.

Medical Administrator Captain

If Cortez had intended to sue the Defendant named as Medical Administrator Captain in
his individual capacity, this claim is also not plausible as pled. To state a deliberate indifference

6

To the extent that Cortez intended to plead a claim against Warden Quigley based on a supervisory
liability theory, he has not done so. There are “two general ways in which a supervisor-defendant may be
liable for unconstitutional acts undertaken by subordinates.” Barkes v. First Corr. Med., Inc., 766 F.3d
307, 316 (3d Cir. 2014), reversed on other grounds by Taylor v. Barkes, 575 U.S. 822 (2015). First, a
supervisor may be liable if he or she “with deliberate indifference to the consequences, established and
maintained a policy, practice or custom which directly caused [the] constitutional harm.” Id. (quoting
A.M. ex rel. J.M.K. v. Luzerne Cty. Juvenile Det. Ctr., 372 F.3d 572, 586 (3d Cir. 2004)). “Second, a
supervisor may be personally liable under § 1983 if he or she participated in violating the plaintiff’s
rights, directed others to violate them, or, as the person in charge, had knowledge of and acquiesced in the
subordinate’s unconstitutional conduct.” Id. (quotation marks and citations omitted).

6

Case 5:21-cv-03450-KSM Document 5 Filed 08/24/21 Page 7 of 9

claim in the context of medical care, a prisoner must allege facts indicating that prison officials
were deliberately indifferent to his serious medical needs.7 See Farmer v. Brennan, 511 U.S.
825, 835 (1994). A prison official is not deliberately indifferent “unless the official knows of
and disregards an excessive risk to inmate health or safety; the official must both be aware of
facts from which the inference could be drawn that a substantial risk of serious harm exists, and
he must also draw the inference.” Farmer, 511 U.S. at 837. Deliberate indifference is properly
alleged “where the prison official (1) knows of a prisoner’s need for medical treatment but
intentionally refuses to provide it; (2) delays necessary medical treatment based on a nonmedical reason; or (3) prevents a prisoner from receiving needed or recommended medical
treatment.” Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir. 1999) (citations omitted). Deliberate
indifference “can be shown by ‘a prison official intentionally denying or delaying access to
medical care or intentionally interfering with the treatment once prescribed.’” Wilks v. City of
Philadelphia, Civ. A. No. 18-4087, 2019 WL 4261159, at *5 (E.D. Pa. Sept. 6, 2019) (quoting
Casilla v. New Jersey State Prison, 381 F. App’x 234, 236 (3d Cir. 2010)). Furthermore, “[a]
medical need is serious, . . . if it is one that has been diagnosed by a physician as requiring
treatment or one that is so obvious that a lay person would easily recognize the necessity for a
doctor’s attention.” Monmouth Cty. Corr. Institutional Inmates v. Lanzaro, 834 F.2d 326, 347
(3d Cir. 1987) (cleaned up). “[W]here denial or delay causes an inmate to suffer a life-long
handicap or permanent loss, the medical need is considered serious.” Id. Allegations of medical

7

As noted above, because Cortez was a pretrial detainee at the time of the events in question, the
Fourteenth Amendment governs his claims. See Moore, 767 F. App’x at 340. In any event, the standard
under the Eighth Amendment and Fourteenth Amendment for claims related to a prisoner’s medical needs
is essentially the same for purposes of the analysis. See Parkell v. Morgan, 682 F. App’x 155, 159–60
(3d Cir. 2017) (per curiam).

7

Case 5:21-cv-03450-KSM Document 5 Filed 08/24/21 Page 8 of 9

malpractice and mere disagreement regarding proper medical treatment are insufficient to
establish a constitutional violation. See Spruill v. Gillis, 372 F.3d 218, 235 (3d Cir. 2004).
Here, Cortez’s Complaint does not support a plausible Fourteenth Amendment claim
under the Iqbal pleading standard. He fails to allege that the Medical Administrator Captain was
personally aware that Cortez had a serious medical need, much less that he acted intentionally to
refuse to provide medical treatment, delayed treatment, or personally prevented Cortez from
receiving treatment. See Rode, 845 F.2d at 1207 (“A defendant in a civil rights action must have
personal involvement in the alleged wrongs.”). Thus, the Complaint does not support a plausible
deliberate indifference claim against the Medical Administrator Captain.
3.

Defendant Murray

If Cortez intended to sue Defendant Murray in his individual capacity based on the use of
excessive force, his claim is conclusory and falls short of providing sufficient factual allegations
to state a plausible claim. He alleges that Defendant Murray pushed him when he was returning
from the shower, causing injury to his neck. (See Doc. No. 1 at 4–5.) To state a due process
violation based on excessive force, a pretrial detainee must allege facts to suggest plausibly that
“that the force purposely or knowingly used against him was objectively unreasonable.”
Kingsley, 576 U.S. at 396–97. “[O]bjective reasonableness turns on the ‘facts and circumstances
of each particular case.” Id. at 397 (quoting Graham v. Connor, 490 U.S. 386, 396 (1989)).
“Considerations such as the following may bear on the reasonableness or unreasonableness of
the force used: the relationship between the need for the use of force and the amount of force
used; the extent of the plaintiff’s injury; any effort made by the officer to temper or to limit the
amount of force; the severity of the security problem at issue; the threat reasonably perceived by
the officer; and whether the plaintiff was actively resisting.” Id. Even construing the allegations

8

Case 5:21-cv-03450-KSM Document 5 Filed 08/24/21 Page 9 of 9

in the Complaint liberally, the circumstances of the use of force are unclear. Cortez alleges only
that he was pushed by Murray, but offers no context to support a plausible excessive force claim.
Absent any factual allegations suggesting that the use of force was objectively unreasonable, the
Complaint cannot support a plausible Fourteenth Amendment claim. See Iqbal, 556 U.S. at 678.
IV.

CONCLUSION
Because Cortez has failed to allege a plausible claim against any named Defendant, his

Complaint must be dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii). Berks County Jail
System will be dismissed with prejudice. The claims against all other Defendants will be
dismissed without prejudice and Cortez will be granted leave to file an amended complaint if he
is able to cure the defects the Court has identified. An appropriate Order follows.

9