Lofton v. Wetzel et al

Filing 16

ORDER granting defts' motion to dismiss 11 & dismissing complaint in its entirety, directing Clrk of Ct to CLOSE case, & deeming any appeal from this order as frivolous & not in good faith. (See order for complete details.) Signed by Honorable Christopher C. Conner on 11/20/12. (ki)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

JERMAINE LOFTON,
Plaintiff
v.
JOHN WETZEL, et al.,
Defendants

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CIVIL ACTION NO. 1:12-CV-1133
(Judge Conner)

MEMORANDUM
Plaintiff Jermaine Lofton (“Lofton”), a state inmate presently incarcerated at
the State Correctional Institution at Rockview (“SCI-Rockview”), Bellefonte,
Pennsylvania, commenced this civil rights action on June 15, 2012, naming the
following employees of the Pennsylvania Department of Corrections (“DOC”) as
defendants: John Wetzel (“Wetzel”), Secretary for the Department of Corrections;
Marirosa Lamas (“Lamas”), Superintendent for SCI-Rockview; Robert Marsh
(“Marsh”), Deputy Secretary for Centralized Services at SCI-Rockview; Ron
Schinkle (“Schinkle”), Facility Maintenance Manager; Jeffrey Rackovan
(“Rackovan”), Superintendent’s Assistant; and, Mr. Wenrick (“Wenrick”), Safety
Manager. Presently pending is defendants’ motion (Doc. 11) to dismiss Lofton’s
complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). For the reasons
that follow, defendants’ motion will be deemed unopposed and granted.

I.

Procedural Background
On September 7, 2012, defendants filed a motion (Doc. 11) to dismiss Lofton’s

complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) or, in the
alternative, pursuant to Federal Rule of Civil Procedure 12(e). On October 15, 2012,
defendants’ Rule 12(e) motion was granted and Lofton was directed to file an
amended complaint. (Doc. 14.) He was also notified that his failure to file an
amended complaint would result in the matter proceeding on the original
complaint and the court considering defendants’ motion to dismiss the complaint
pursuant to Federal Rule of Civil Procedure 12(b)(6). (Id.) Because Lofton has
failed to file an amended complaint within the established deadline, defendants’
Rule 12(b)(6) motion will be addressed.
II.

Standard of Review
Rule 12(b)(6) of the Federal Rules of Civil Procedure provides for the

dismissal of complaints that fail to state a claim upon which relief can be granted.
FED . R. CIV . P. 12(b)(6). When ruling on a motion to dismiss under Rule 12(b)(6), the
court must “accept as true all [factual] allegations in the complaint and all
reasonable inferences that can be drawn therefrom, and view them in the light most
favorable to the plaintiff.” Kanter v. Barella, 489 F.3d 170, 177 (3d Cir. 2007)
(quoting Evancho v. Fisher, 423 F.3d 347, 350 (3d Cir. 2005)). Although the court is
generally limited in its review to the facts contained in the complaint, it “may also
consider matters of public record, orders, exhibits attached to the complaint and
items appearing in the record of the case.” Oshiver v. Levin, Fishbein, Sedran &
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Berman, 38 F.3d 1380, 1384 n.2 (3d Cir. 1994); see also In re Burlington Coat
Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997).
Federal notice and pleading rules require the complaint to provide “the
defendant notice of what the . . . claim is and the grounds upon which it rests.”
Phillips v. County of Allegheny, 515 F.3d 224, 232 (3d Cir. 2008) (quoting Bell
Atlantic Corp. v. Twombly, 550 U.S. 544 (2007)). The plaintiff must present facts
that, if true, demonstrate a plausible right to relief. See FED . R. CIV . P. 8(a) (stating
that the complaint should include “a short and plain statement of the claim showing
that the pleader is entitled to relief”); Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937,
1949 (2009) (explaining that Rule 8 requires more than “an unadorned,
the-defendant unlawfully-harmed-me accusation”); Twombly, 550 U.S. at 555
(requiring plaintiffs to allege facts sufficient to “raise a right to relief above the
speculative level”). Thus, to prevent a summary dismissal, civil complaints must
now allege “sufficient factual matter” to show that a claim is facially plausible. See
Iqbal, 556 U.S. 662, 129 S.Ct. at 1949–50; see also Twombly, 505 U.S. at 555, & n. 3;
Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009). This then “allows the
court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Iqbal, 556 U.S. 662, 129 S.Ct. at 1948.
The Third Circuit now requires that a district court must conduct the
two-part analysis set forth in Iqbal when presented with a motion to dismiss:

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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. [Iqbal, 129 S.Ct. at 1949–50]. 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.] In other
words, a complaint must do more than allege the plaintiff's
entitlement to relief. A complaint has to “show” such an
entitlement with its facts. See Phillips, 515 F.3d at 234–35.
As the Supreme Court instructed in Iqbal, “[w]here 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 1949–50]. This “plausibility”
determination will be “a context-specific task that requires
the reviewing court to draw on its judicial experience and
common sense.” Id.
Fowler, 578 F.3d at 210–211.
This Court is mindful, however, that the sufficiency of a pro se pleading must
be construed liberally in favor of plaintiff, even after Iqbal. See Erickson v. Pardus,
551 U.S. 89 (2007). Moreover, a complaint should not be dismissed with prejudice
for failure to state a claim without granting leave to amend, unless it finds bad faith,
undue delay, prejudice or futility. See Grayson v. Mayview State Hosp., 293 F.3d
103, 110–111 (3d Cir. 2002); Shane v. Fauver, 213 F.3d 113, 117 (3d Cir. 2000).
III.

Allegations of Complaint
Plaintiff states that he “brings this action for the constitutional conditions; as

S.C.I. Rockview: overcrowded condition exposure to asbestos; exposure to coal ash;
discrimination against inmates with disability; lack of ventilation; fire safety
violations; and negligence.” (Doc. 1, at 2.) He alleges that “each of the defendant

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[sic] had knowledge of the conditions and purposely refused to correct it, in doing
so put the plaintiff and others at risk.” (Id.) He seeks injunctive relief and
monetary and punitive damages. (Id. at 3.)
IV.

Discussion
Section 1983 of Title 42 of the United States Code offers private citizens a

cause of action for violations of federal law by state officials. See 42 U.S.C. § 1983.
The statute provides, in pertinent part, as follows:
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. . . .
Id.; see also Gonzaga Univ. v. Doe, 536 U.S. 273, 284-85 (2002); Kneipp v. Tedder, 95
F.3d 1199, 1204 (3d Cir. 1996). 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).
Defendants seek to dismiss the complaint based on Lofton’s failure to set
forth sufficient allegations of defendants’ personal involvement in the alleged
wrongful conduct. Individual liability can be imposed under Section 1983 only if
the state actor played an “affirmative part” in the alleged misconduct and “cannot
be predicated solely on the operation of respondeat superior.” Evancho v. Fisher,

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423 F.3d 347, 353 (3d Cir. 2005) (quoting Rode v. Dellarciprete, 845 F.2d 1195, 1207
(3d Cir. 1998)). “A defendant in a civil rights action must have personal
involvement in the alleged wrongs. . . . Personal involvement can be shown through
allegations of personal direction or of actual knowledge and acquiescence.” Rode,
845 F.2d at 1207-08; see also, Rizzo v. Goode, 423 U.S. 362 (1976); Atkinson v. Taylor,
316 F.3d 257 (3d Cir. 2003). Such allegations, however, must be made with
appropriate particularity in that a complaint must allege the particulars of conduct,
time, place, and person responsible. Evancho, 423 F.3d at 354; Rode, 845 F.2d at
1207-08. Alleging a mere hypothesis that an individual defendant had personal
knowledge or involvement in depriving the plaintiff of his rights is insufficient to
establish personal involvement. Rode, 845 F.2d at 1208.
Defendants argue that Lofton seeks to impose liability on defendants based
upon their roles as supervisors and “has not made any factual assertion to support
each individual was personally involved.” (Doc. 12, at 5.) The Court agrees.
Defendants’ individual names only appear in the caption of the complaint and
under the “Defendants” heading. In the“Statement of Claim” section, he only
lodges general allegations against “the above defendants” and “each of the
defendant[s].” (Doc. 1, at 1-2.) He fails to set forth a plausible claim of relief in that
he does not identify specific dates, times, or instances of constitutional misconduct,
and he does not allege that any of the defendants knew of, and acquiesced in, or
played an affirmative part in such misconduct. Consequently, defendants’ motion
will be granted.
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Based upon Lofton’s failure file an amended complaint after being placed on
notice of the deficiencies of his complaint via this Court’s order of October 15, 2012
(Doc. 14), affording him an opportunity to amend would be futile.1
VI.

Conclusion
Based on the foregoing, defendants’ motion (Doc. 11) to dismiss Lofton’s

complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) will be granted.
An appropriate order follows.

S/ Christopher C. Conner
CHRISTOPHER C. CONNER
United States District Judge

Dated:

November 20, 2012

It is also worth noting that Lofton has not filed a single document or
communicated with this court in any manner since June 15, 2012, the day he
initiated this action.
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IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

JERMAINE LOFTON,
Plaintiff
v.
JOHN WETZEL, et al.,
Defendants

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CIVIL ACTION NO. 1:12-CV-1133
(Judge Conner)

ORDER
AND NOW, this 20th day of November, 2012, upon consideration of
defendants’ motion (Doc. 11) to dismiss pursuant to Federal Rule of Civil Procedure
12(b)(6), it is hereby ORDERED that:
1.

The motion (Doc. 11) is GRANTED and plaintiff’s complaint is
DISMISSED in its entirety.

2.

The Clerk of Court is directed to CLOSE this case.

3.

Any appeal from this order is DEEMED frivolous and not in good faith.
See 28 U.S.C. § 1915(a)(3).

S/ Christopher C. Conner
CHRISTOPHER C. CONNER
United States District Judge