Joseph v. Asure et al

Filing 33

ORDER - IT IS HEREBY ORDERED that the 30 REPORT AND RECOMMENDATION is ADOPTED. 2)Dft's 18 MOTION to Dismiss is DENIED. 3)Pltf's 21 Motion for Preliminary Injunction is DENIED; and ALL FURTHER PROCEEDINGS are REFERRED to Magistrate Judge J. Andrew Smyser.Signed by Chief Judge Yvette Kane on Feb. 7, 2012. (sc)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
GEORGE JOSEPH,
Plaintiff
v.
WARDEN DONNA ASURE, et al.,
Defendants

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Civil Action No. 1:11-cv-01255
(Chief Judge Kane)

MEMORANDUM ORDER
Presently pending before the Court is Magistrate Judge Smyser’s Report and
Recommendation that Defendants’ motion to dismiss Plaintiff’s amended complaint and
Plaintiff’s motion for a preliminary injunction be denied. (Doc. No. 30.) Defendants have filed
objections to the Report and Recommendation. (Doc. No. 31.) For the reasons that follow, the
Court will adopt the Report and Recommendation.
I.

BACKGROUND
The above-captioned action arises from statements made by several Monroe County

Correctional Facility (“MCCF”) officers regarding Plaintiff George Joseph, who is currently
incarcerated at the MCCF. According to Plaintiff, in 2011, Defendant Sergeant R. Start assigned
Defendant Officer Rivera, who previously worked at the MCCF, to the B-Unit, a segregation
unit that houses many inmates who have been accused of sexual crimes. (Doc. No. 9 at 4-5.)
Plaintiff asserts that Defendant Start maliciously assigned Defendant Rivera to this unit because
he knew that she had animosity toward such inmates. (Id. at 8-9.) According to Plaintiff,
Defendant Rivera was malicious and vindictive towards him. (Id. at 5.) Specifically, he asserts
that Defendant Rivera told other inmates, with the intent to cause Plaintiff bodily harm, that
Plaintiff was a “no good scumbag child molester” and child predator who should die. (Id. at 51

7.) As a result, Plaintiff suffered humiliation, scorn, ridicule, and was involved in altercations
with other inmates. (Id. at 6-7.)
In June 2011, Plaintiff asserts that he discussed Defendant Rivera’s statements with
Defendant Warden Donna Asure. (Id. at 9.) Defendant Asure allegedly told him, within earshot
of the entire unit, that he should stop committing the crimes that have caused him to be
incarcerated. (Id.) The following month, Plaintiff discussed his situation with Defendant Officer
Wright, who responded by telling Plaintiff that he was “nothing but a piece of shit child
molester” and threatening that if he did not “close his mouth,” other inmates would be allowed to
enter his cell and “beat the shit out of [him].” (Id. at 10-11.) These statements allegedly further
humiliated Plaintiff and encouraged other inmates’ ridicule of him. (Id. at 9-11.)
Plaintiff instituted this action by filing a complaint on July 5, 2011 (Doc. No. 1), and an
amended complaint on August 15, 2011 (Doc. No. 9). Defendants filed a motion to dismiss on
September 9, 2011. (Doc. No. 18.) On September 28, 2011, Plaintiff filed a motion for a
preliminary injunction. (Doc. No. 21.) Judge Smyser issued his Report and Recommendation
on January 12, 2012 (Doc. No. 30), and Defendants filed objections and a brief in support on
January 16, 2012 (Doc. Nos. 31, 32).1
II.

DISCUSSION
Neither Plaintiff nor Defendants challenge Judge Smyser’s recommendation that

Plaintiff’s motion for a preliminary injunction (Doc. No. 21) be denied. Therefore, the Court

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The Magistrate Act, 28 U.S.C. § 636, and Rule 72(b) of the Federal Rules of Civil
Procedure provide that any party may file written objections to a magistrate’s proposed findings
and recommendations. In deciding whether to accept, reject, or modify the Report and
Recommendation, the Court is to make a de novo determination of those portions of the Report
and Recommendation to which objection is made. 28 U.S.C. § 636(b)(1).
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will adopt this recommendation and deny the motion without further analysis. Defendants raise
two objections to Judge Smyser’s Report and Recommendation. First, Defendants contend that
Plaintiff has not sufficiently pled an Eighth Amendment failure-to-protect claim because he
alleges neither that Defendants incited other inmates to physically attack him nor that Plaintiff
was ever injured as a result of Defendants’ statements. (Doc. No. 31 ¶¶ 6, 8.) Second, they
contend that Plaintiff has not sufficiently pled a failure-to-protect claim against Defendant
Wright because Plaintiff does not allege that Defendant Wright’s statements were made within
earshot of other inmates. (Id. ¶ 12.)
The Eighth Amendment obligates prison officials to take reasonable measures “to protect
prisoners from violence at the hands of other prisoners.” Farmer v. Brennan, 511 U.S. 825, 833
(1994). Prison officials may be held liable under the Eighth Amendment where they knew that
an inmate “face[d] a substantial risk of serious harm and disregard[ed] that risk by failing to take
reasonable measures to abate it.” Id. at 847. Negligence, or the lack of due care under the
circumstances, is not sufficient to support a claim that prison officials failed to protect the
inmate. Davidson v. Cannon, 474 U.S. 344, 347 (1986). To establish that prison officials
violated the Eighth Amendment by failing to prevent harm, an inmate must show that: (1) the
prison conditions posed a substantial risk of serious harm; and (2) the prison officials were
deliberately indifferent to the inmate’s health or safety. Farmer, 511 U.S. at 834. Deliberate
indifference is the reckless disregard of a known, excessive risk of serious harm to an inmate’s
health or safety. Id. at 835-36. To constitute deliberate indifference, “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.” Id. at 837; see also Beers-Capitol v. Whetzel, 256

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F.3d 120, 133 (3d Cir. 2001).
In his report, Judge Smyser notes that allegations of only verbal abuse by prison officials
is not sufficient to support an action under 42 U.S.C. § 1983. (Doc. No. 30 at 5-6.) Judge
Smyser, however, concluded that Plaintiff had sufficiently pled a failure-to-protect claim
because he alleges that Defendants’ statements referring to him as a child molester, made in front
of other inmates, created a substantial risk of serious harm to him. (Id. at 6.) Defendants,
however, challenge Judge Smyser’s conclusion on the basis that Plaintiff does not allege that
Defendants incited an attack on Plaintiff or that Plaintiff was physically harmed by other inmates
as a result of Defendants’ statements. (Doc. No. 32 at 6-7.)
It is well settled that verbal harassment of a prisoner alone does not violate the Eighth
Amendment. Robinson v. Taylor, 204 F. App’x 155, 156 (3d Cir. 2006). However, as Judge
Smyser correctly found, Plaintiff’s claims are not limited to mere verbal harassment but, rather,
also include allegations that he suffered humiliation, scorn, ridicule, and was involved in
altercations with other inmates. An inmate need not wait until actual attack occurs to obtain
relief. Benefield v. McDowell, 241 F.3d 1267, 1270-72 (10th Cir. 2001). In Benefield, the
Government contended that allegations of verbal harassment and psychological injury caused by
living in fear of other inmates is not sufficient to state an Eighth Amendment claim. Id. at 1271.
The United States Court of Appeals for the Tenth Circuit noted, however, that the Eighth
Amendment reaches conduct that “‘is sure or very likely to cause’ serious injury at the hands of
other inmates.” Id. at 1272 (quoting Helling v. McKinney, 509 U.S. 25, 33 (1993)). Although
Plaintiff does not specifically allege that he was physically attacked by other inmates due to
Defendants’ statements, the Court finds that, accepting Plaintiff’s allegations as true, Plaintiff

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has sufficiently pled that Defendants violated the Eighth Amendment by knowingly placing him
in a class of inmates subject to serious bodily harm. See Benefield, 241 F.3d at 1271-72; Brown
v. Narvais, 265 F. App’x 734, 735-36 (10th Cir. 2008); Haywood v. Woods, No. 9:01-CV00225, 2007 WL 1834641, at *8 (N.D.N.Y. June 25, 2007). Accordingly, the Court will adopt
Judge Smyser’s recommendation that Defendants’ motion to dismiss this claim be denied.
Finally, Defendants contend that Plaintiff’s claim against Defendant Wright should be
dismissed because Plaintiff does not allege that he made any statements to anyone other than
Plaintiff. (Doc. No. 31 ¶ 12; Doc. No. 32 at 7.) The amended complaint contains allegations
that Defendant Wright called Plaintiff a child molester, threatened to allow other inmates to
attack Plaintiff, and that his statements encouraged other inmates to ridicule Plaintiff. After a de
novo consideration of this objection and the amended complaint, the Court finds that Plaintiff
has sufficiently pled a failure-to-protect claim against Defendant Wright.
ACCORDINGLY, on this 7th day of February 2012, IT IS HEREBY ORDERED
THAT:
1.

Magistrate Judge Smyser’s Report and Recommendation (Doc. No. 30) is ADOPTED;

2.

Defendants’ motion to dismiss Plaintiff’s amended complaint (Doc. No. 18) is DENIED;

3.

Plaintiff’s motion for a preliminary injunction (Doc. No. 21) is DENIED; and

4.

All further proceedings in this matter are referred to Magistrate Judge Smyser.

S/ Yvette Kane
Yvette Kane, Chief Judge
United States District Court
Middle District of Pennsylvania

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