Hagan v. Harris et al
Filing
52
MEMORANDUM OPINION (Order to follow as separate docket entry) re 44 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by David Swisher, James Harrington, John Wetzel, Robert Marsh, 29 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by Quentin Dolphin. Signed by Magistrate Judge Martin C. Carlson on October 15, 2014. (kjn)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
DAMONT HAGAN,
Plaintiff
v.
QUENTIN DOLPHIN, et al.,
Defendants
:
:
:
:
:
:
:
:
:
Civil No. 1:13-CV-2731
(Magistrate Judge Carlson)
MEMORANDUM OPINION
I.
INTRODUCTION
The plaintiff in this action, Damont Hagan, is an inmate in the custody of the
Pennsylvania Department of Corrections, (DOC) currently housed at the State
Correctional Institution at Huntingdon. He is also a frequent litigant in federal court.
In this case, Hagan has sued five individuals, all of whom are contracted with or
employed by the DOC, alleging that the defendants engaged in a conspiracy to
modify his health diagnosis and discontinue his prescription medications in order to
keep him hidden from certain Department of Justice officials who were intending to
tour the facility and interview inmates as part of an investigation.1 Hagan also alleges
The remaining defendants in this action include Quentin Dolphin, David
Swisher, James Harrington, Robert Marsh, and John Wetzel, the Secretary of the
Pennsylvania Department of Corrections.
1
that the defendants took these actions to retaliate against him for filing grievances and
other litigation against prison staff. Additionally, Hagan alleges that the defendants
prolonged his detention in segregated housing, and exhibited deliberate indifference
to his serious medical needs, in violation of the Eighth Amendment.
Hagan initiated this action by filing a complaint on November 11, 2013. (Doc.
1.) On December 10, 2013, the District Court ordered the plaintiff to file an amended
complaint by December 30, 2013. (Doc. 8.) Hagan complied with this order, filing
an amended complaint on December 26, 2013. (Doc. 9.) Thereafter, the defendants
moved to dismiss the amended complaint. (Docs. 20, 22.) In response, Hagan filed
a brief opposing the motions (Doc. 26.), but then filed a second amended complaint
on June 9, 2014. (Doc. 28.) Hagan filed this second amended complaint without
having first sought leave of court to do so.
Hagan’s second amended complaint inspired the defendants to file new
motions to dismiss as well as a motion to strike the pleading. (Docs. 29, 30.) The
case was subsequently referred to the undersigned following the parties’ consent to
proceed before the Magistrate Judge. (Doc. 41.) Upon receiving this referral, we
entered an order granting the plaintiff leave to file the second amended complaint,
denying the then-pending motions to dismiss the first amended complaint as moot,
and denying the defendants’ motion to strike the second amended complaint. (Doc.
2
42.) In the same order, Hagan was ordered to respond to the defendants’ motions to
dismiss. (Id.)
On September 3, 2014, the corrections defendants filed a separate motion to
dismiss the second amended complaint. (Doc. 44.) Hagan responded to this motion
and to defendant Dolphin’s earlier motion with briefs filed on September 15 and
September 18, 2014. (Docs. 46, 47.) Defendant Dolphin filed a reply brief in further
support of his motion on September 29, 2014. The motions are now fully briefed and
ripe for disposition.
II.
DISCUSSION
A.
Rule 12(b)(6): Standard of Review
A motion to dismiss for failure to state a claim is designed to test the legal
sufficiency of a complaint. Thus, Rule 12(b)(6) of the Federal Rule of Civil
Procedure provides for the dismissal of a complaint, in whole or in part, if the
plaintiff fails to state a claim upon which relief can be granted. The moving party
bears the burden of showing that no claim has been stated, Hedges v. United States,
404 F.3d 744, 750 (3d Cir. 2005), and dismissal is appropriate only if, accepting all
of the facts alleged in the complaint as true, the plaintiff has failed to plead “enough
facts to state a claim to relief that is plausible on its face,” Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007) (abrogating “no set of facts” language found in
3
Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). The facts alleged must be sufficient
to “raise a right to relief above the speculative level.” Twombly, 550 U.S. 544, 555.
This requirement “calls for enough fact[s] to raise a reasonable expectation that
discovery will reveal evidence” of necessary elements of the plaintiff’s cause of
action. Id. at 556. Furthermore, in order to satisfy federal pleading requirements, the
plaintiff must “provide the grounds of his entitlement to relief,” which “requires more
than labels and conclusions, and a formulaic recitation of the elements of a cause of
action will not do. Phillips v. County of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008)
(brackets and quotation marks omitted) (quoting Twombly, 550 U.S. at 555). Thus,
“[a]t the motion to dismiss stage, we accept as true all factual assertions, but we
disregard threadbare recitals of the elements of a cause of action, legal conclusions,
and conclusory statements. See Iqbal, 556 U.S. at 678–79, 129 S.Ct. 1937; Twombly,
550 U.S. at 555–57, 127 S.Ct. 1955; Burtch, 662 F.3d at 220–21.” James v. City of
Wilkes-Barre, 700 F.3d 675, 681 (3d Cir. 2012).
As the court of appeals has observed: “The Supreme Court in Twombly set
forth the ‘plausibility’ standard for overcoming a motion to dismiss and refined this
approach in Iqbal. The plausibility standard requires the complaint to allege ‘enough
facts to state a claim to relief that is plausible on its face.’ Twombly, 550 U.S. at 570,
127 S.Ct. 1955. A complaint satisfies the plausibility standard when the factual
4
pleadings ‘allow[ ] the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.’ Iqbal, 129 S.Ct. at 1949 (citing Twombly, 550
U.S. at 556, 127 S.Ct. 1955). This standard requires showing ‘more than a sheer
possibility that a defendant has acted unlawfully.’ Id. A complaint which pleads
facts ‘merely consistent with’ a defendant's liability, [ ] ‘stops short of the line
between possibility and plausibility of “entitlement of relief.” ’ ” Burtch v. Milberg
Factors, Inc., 662 F.3d 212, 220-21 (3d Cir. 2011) cert. denied, 132 S. Ct. 1861, 182
L. Ed. 2d 644 (U.S. 2012).
Thus, in assessing a motion to dismiss under Rule 12(b)(6) the court engages
in a three-step analysis: “First, the court must ‘tak[e] note of the elements a plaintiff
must plead to state a claim.’ Iqbal, 129 S.Ct. at 1947. Second, the court should
identify allegations that, ‘because they are no more than conclusions, are not entitled
to the assumption of truth.’ Id. at 1950. Finally, ‘where there are well-pleaded
factual allegations, a court should assume their veracity and then determine whether
they plausibly give rise to an entitlement for relief.’ Id.” Santiago v. Warminster Tp.,
629 F.3d 121, 130 (3d Cir. 2010).
In undertaking this task, the court generally relies only on the complaint,
attached exhibits, and matters of public record. Sands v. McCormick, 502 F.3d 263,
268 (3d Cir. 2007). The court may also consider “undisputedly authentic document[s]
5
that a defendant attached as an exhibit to a motion to dismiss if the plaintiff’s claims
are based on the [attached] documents.” Pension Benefit Guar. Corp. v. White
Consol. Indus., 998 F.2d 1192, 1196 (3d Cir. 1993). Moreover, “documents whose
contents are alleged in the complaint and whose authenticity no party questions, but
which are not physically attached to the pleading, may be considered.” Pryor v. Nat’l
Collegiate Athletic Ass’n, 288 F.3d 548, 560 (3d Cir. 2002); see also, U.S. Express
Lines, Ltd. v. Higgins, 281 F.3d 383, 388 (3d Cir. 2002) (instructing that “[a]lthough
a district court may not consider matters extraneous to the pleadings, a document
integral to or explicitly relied upon in the complaint may be considered without
converting the motion to dismiss in one for summary judgment.”) (original emphasis
removed).
However, the court may not rely on other parts of the record in
determining a motion to dismiss. Jordan v. Fox, Rothschild, O’Brien &Frankel, 20
F.3d 1250, 1261 (3d Cir. 1994).
B.
Eighth Amendment Deliberate Indifference
With our review cabined and confined solely to the well-pleaded facts in the
complaint, we note that Hagan alleges a conspiracy among the defendants to alter his
medical diagnoses and to restrict his access to prescription medication, all in an effort
either to retaliate against him for his exercise of First Amendment activity, or to
ensure that Hagan was not seen by officials with the Department of Justice who were
6
conducting an investigation into the treatment of prisoners at SCI-Huntingdon.
Hagan has framed these alleged actions in part as deliberate indifference by the
defendants to his serious medical needs, in violation of the Eighth Amendment to the
United States Constitution.
Hagan faces an exacting burden in advancing this Eighth Amendment claim
against prison officials in their individual capacities. To sustain such a claim, he
must:
[M]eet two requirements: (1) “the deprivation alleged must be,
objectively, sufficiently serious;” and (2) the “prison official must have
a sufficiently culpable state of mind.” Farmer v. Brennan, 511 U.S. 825,
834, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994) (quotation marks and
citations omitted). In prison conditions cases, “that state of mind is one
of ‘deliberate indifference’ to inmate health or safety.” Id. “Deliberate
indifference” is a subjective standard under Farmer-the prison officialdefendant must actually have known or been aware of the excessive risk
to inmate safety.
Beers-Capitol v. Whetzel, 256 F.3d 120, 125 (3d Cir. 2001).
These principles apply with particular force to Eighth Amendment claims
premised upon inadequate medical care. In the medical context, a constitutional
violation under the Eighth Amendment occurs only when state officials are
deliberately indifferent to an inmate's serious medical needs. Estelle v. Gamble, 429
U.S. 97, 105 (1976). To establish a violation of his constitutional right to adequate
7
medical care in a prison setting, Hagan is required to point to evidence that
demonstrates both (1) a serious medical need, and (2) acts or omissions by prison
officials that indicate deliberate indifference to that need. Rouse v. Plantier, 182 F.3d
192, 197 (3d Cir. 1999).
Deliberate indifference to a serious medical need involves the “unnecessary
and wanton infliction of pain.” Estelle, 429 U.S. at 104. Such indifference may be
evidenced by an intentional refusal to provide care, delayed provision of medical
treatment for non-medical reasons, denial of prescribed medical treatment, denial of
reasonable requests for treatment that results in suffering or risk of injury, Durmer v.
O’Carroll, 991 F.2d 64, 68 (3d Cir. 1993), or by “persistent conduct in the face of
resultant pain and risk of permanent injury,” White v. Napoleon, 897 F.2d 103, 109
(3d Cir. 1990).
However, it is also clear that the mere misdiagnosis of a condition or medical
need, or negligent treatment provided for a condition, is not actionable as an Eighth
Amendment claim because medical malpractice is not a constitutional violation.
Estelle, 429 U.S. at 106. “Indeed, prison authorities are accorded considerable
latitude in the diagnosis and treatment of prisoners.” Durmer, 991 F.2d at 67
(citations omitted). Furthermore, in a prison medical context, deliberate indifference
is generally not found when some significant level of medical care has been offered
8
to the inmate. Clark v. Doe, 2000 U.S. Dist. LEXIS 14999, 2000 WL 1522855, at *2
(E.D.Pa. Oct. 13, 2000)(“courts have consistently rejected Eighth Amendment claims
where an inmate has received some level of medical care”). Thus, such complaints
fail as constitutional claims under § 1983 since “the exercise by a doctor of his
professional judgment is never deliberate indifference. See, e.g. Brown v. Borough
of Chambersburg, 903 F.2d 274, 278 (3d Cir.1990) (‘[A]s long as a physician
exercises professional judgment his behavior will not violate a prisoner's
constitutional rights.’)”. Gindraw v. Dendler, 967 F. Supp. 833, 836 (E.D. Pa. 1997).
Applying this exacting standard, courts have frequently rejected Eighth Amendment
claims that are based upon the level of professional care that an inmate received; see,
e.g., Ham v. Greer, 269 F. App’x 149 (3d Cir. 2008); James v. Dep’t of Corrections,
230 F. App’x 195 (3d Cir. 2007); Gillespie v. Hogan, 182 F. App’x 103 (3d Cir.
2006); Bronson v. White, No. 05-2150, 2007 WL 3033865 (M.D. Pa. Oct. 15, 2007);
Gindraw v. Dendler, 967 F.Supp. 833 (E.D. Pa. 1997), particularly where it can be
shown that significant medical services were provided to the inmate but the prisoner
is dissatisfied with the outcome of these services. Instead, courts have defined the
precise burden which an inmate must sustain in order to advance an Eighth
Amendment claim against a healthcare professional premised on allegedly inadequate
care, stating that:
9
The district court [may] properly dis[miss an] Eighth Amendment claim,
as it concerned [a care giver], because [the] allegations merely amounted
to a disagreement over the proper course of his treatment and thus failed
to allege a reckless disregard with respect to his . . . care. The standard
for cruel and unusual punishment under the Eighth Amendment,
established by the Supreme Court in Estelle v. Gamble, 429 U.S. 97, 104
(1976), and its progeny, has two prongs: 1) deliberate indifference by
prison officials and 2) serious medical needs. “It is well-settled that
claims of negligence or medical malpractice, without some more
culpable state of mind, do not constitute ‘deliberate indifference.’ ”
“Nor does mere disagreement as to the proper medical treatment support
a claim of an eighth amendment violation.” . . . . [The inmate] alleged no
undue delay in receiving treatment and, as the district court noted, the
evidence he presented established that he received timely care . . . .
Although [an inmate plaintiff] may have preferred a different course of
treatment, [t]his preference alone cannot establish deliberate
indifference as such second-guessing is not the province of the courts.
James, 230 F. App’x at 197-198 (citations omitted).
In short, in the context of the Eighth Amendment, any attempt to second-guess
the propriety or adequacy of a particular course of treatment is disavowed by courts
since such determinations remain a question of sound professional medical judgment.
Inmates of Allegheny County Jail v. Pierce, 612 F.2d 754, 762 (3d Cir. 1979)
(quoting Bowring v. Godwin, 551 F.2d 44, 48 (4th Cir. 1977)).
Furthermore, it is well-settled that an inmate’s dissatisfaction with a course of
medical treatment, standing alone, does not give rise to a viable Eighth Amendment
claim. See Taylor v. Norris, 36 F. App’x 228, 229 (8th Cir. 2002) (deliberate
10
indifference claim failed when it boiled down to a disagreement over recommended
treatment for hernias and decision not to schedule a doctor's appointment); AbdulWadood v. Nathan, 91 F.3d 1023, 1024-35 (7th Cir.1996) (inmate's disagreement
with selection of medicine and therapy for sickle cell anemia falls well short of
demonstrating deliberate indifference); Sherrer v. Stephen, 50 F.3d 496, 497 (8th
Cir.1994) (inmate's “desire for a replacement joint instead of fusion surgery is merely
a disagreement with the course of medical treatment and does not state a
constitutional claim”); Kayser v. Caspari, 16 F.3d 280, 281 (8th Cir.1994) (prison
provided escalating level of treatment for inmates's ailments over time, and inmate's
disagreement with course of medical treatment was insufficient basis for Eighth
Amendment violation); Czajka v. Caspari, 995 F.2d 870, 871 (8th Cir.1993) (inmate's
mere disagreement with doctor's informed decision to delay surgery does not establish
Eighth Amendment claim); Smith v. Marcantonio, 910 F.2d 500, 502 (8th Cir.1990)
(inmate failed to prove deliberate indifference where his complaints represented
nothing more than mere disagreement with course of his medical treatment); Lair v.
Oglesby, 859 F.2d 605, 606 (8th Cir.1988) (disagreement about whether doctor
should have prescribed medication does not result in constitutional violation); Martin
v. Sargent, 780 F.2d 1334, 1339 (8th Cir.1985) (Inmate failed to state facts indicating
doctor deliberately disregarded his medical problem; inmate's disagreement as to
11
proper medical treatment does not give rise to Eighth Amendment violation).
Therefore, where a dispute in essence entails no more than a disagreement between
an inmate and doctors over alternate treatment plans, the inmate’s complaint will fail
as constitutional claims under § 1983 since “the exercise by a doctor of his
professional judgment is never deliberate indifference.” Gindraw v. Dendler, 967 F.
Supp. 833, 836 (E.D. Pa. 1997)(citations omitted).
Although this case present a close question, we find that Hagan has alleged
sufficient factual matters to support his claims against the moving defendants with
respect to their alleged decision to have Hagan’s mental health diagnosis altered and
to deprive him of necessary medication, decisions that Hagan claims were not
medically based but were instead driven by a desire to retaliate against Hagan for his
litigation activity against prison staff. The defendants suggest that the plaintiff’s
pleading is overly general, lacks in factual allegations, or otherwise relies upon
allegations that represent no more than Hagan’s mere disagreement with his physician
and prison officials regarding their treatment of his mental health needs. Liberally
construing this pro se complaint, as we are required to do, we find that the inferences
that may reasonably be drawn from Hagan’s well-pleaded allegations go beyond a
mere disagreement, but also allege a denial of care for non-medical reasons, and thus
provide further support for denying the motion. Moreover, we note that defendant
12
Dolphin repeatedly asserts that Hagan has failed to “establish” or prove his claims,
but this argument is more properly reserved for a motion for summary judgment after
the parties have an opportunity to engage in the discovery process.
Hagan’s allegations are straightforward. First, he contends that he was
approached by defendants Dolphin and Swisher and was told that he was being taken
off of his medication because he persisted in filing grievances and other paperwork.
Likewise, Hagan claims that defendant Dolphin falsified documents to remove any
reference in Hagan’s record that showed he had a psychotic disorder. In and around
this time, however, Hagan contends that he was suffering from flashbacks and loss
of concentration, was extremely irritable, and was engaging in acts of self-harm.
(Doc. 28 ¶¶ 5, 8, 10.) According to Hagan, due to Dolphin altering his medication
and removing him from the active mental health roster, he received no mental health
treatment over a 90-day period, other than to speak with a staff member on occasion.
(Id. ¶ 11.) Hagan contends that Dolphin knew not only about his mental health
diagnoses, but also knew that Hagan had been held in solitary confinement for more
than seven years, and that during that time he had been diagnosed with schizophrenia,
depression, psychotic disorder, mood disorder, borderline personality disorder, and
anti-social personality disorder, which all developed in conjunction with Hagan being
held in solitary confinement. (Id. ¶ 13.) Hagan contends that the defendants knew
13
this, and also knew that Hagan had a history of self-mutilation and that he had
attempted suicide during times when he was not taking his medication. (Id. ¶ 14.)
Hagan contends that staff in the solitary confinement wing of the prison are
inadequately trained to deal with inmate mental health needs, and in fact are either
indifferent to inmate needs or, in some cases, have assaulted mentally ill inmates or
actively encourages inmates to harm themselves. (Id. ¶¶16-17.)
Hagan further contends that he personally met with Secretary Wetzel on
multiple occasions to complain about his lack of treatment, the fact that he was
removed from the mental health roster, and had his medications altered; and Hagan
alleges that Wetzel acknowledged Hagan’s mental health needs but was still placing
Hagan in “an environment that does not assess or evaluated [sic] inmates.” (Id. ¶¶2328.) Hagan claims that in August, 2013, after he met with Secretary Wetzel, Hagan
cut himself but was not treated by staff. (Id. ¶ 32.) Hagan alleges that other staff,
including defendant Marsh, were made aware of his mental health needs but took no
action or actively impeded treatment or evaluation in retaliation for Hagan filing
grievances. (Id. ¶¶ 33-38.) Hagan claims that an unidentified staff member
encouraged him to commit suicide, and that Hagan attempted to do so on October 1,
2013. (Id. ¶ 38.)
14
Upon consideration, while we agree with the defendants’ assertion that Hagan
has not yet “established” or otherwise proved these serious allegations, we do not find
that the second amended complaint fails to set forth sufficient factual allegations to
support a claim against the defendants for deliberate indifference based upon their
alleged manipulation of Hagan’s mental health diagnosis and treatment regimen, and
their alleged refusal to provide Hagan with mental health treatment for several
months during 2013.2 Whether Hagan can prove what he alleges must await another
day and a different form of motion, a motion for summary judgment.
C.
First Amendment Retaliation
Closely related to Hagan’s claims that the defendants were deliberately
indifferent to his mental health needs is his claim that the defendants denied Hagan
Defendants Marsh and Wetzel also argue, in part, that Hagan’s claims for
deliberate indifference should be dismissed as to them because there are
insufficient facts plead to show personal involvement on their part. We disagree.
The second amended complaint includes multiple allegations that appear intended
to show personal involvement by both of these defendants in the alleged
unconstitutional conduct, and that they were aware of and permitted the
unconstitutional conduct of others. (Doc. 28, ¶¶ 19-29 and 34-37.) Although we
recognize that Hagan must establish personal involvement by all defendants in
order to sustain his claims, and that liability cannot be predicated solely on
respondeat superior alone, see Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d
Cir. 1988), in this case Hagan has made sufficient allegations of personal
involvement by all remaining defendants to survive the pending motions to
dismiss.
2
15
mental health treatment, medication, and other therapies in a concerted effort to
retaliate against Hagan for his persistence in filing grievances and engaging in other
activities protected by the First Amendment.
"Retaliation for the exercise of a constitutional right is itself a violation of
rights secured by the Constitution actionable under section 1983."
White v.
Napoleon, 897 F.2d 103, 111-12 (3d Cir. 1990). In Allah v. Seiverling, the Third
Circuit Court of Appeals held that, "government actions, which standing alone do not
violate the Constitution, may nonetheless be constitutional torts if motivated in
substantial part by a desire to punish an individual for the exercise of a constitutional
right." 229 F.3d at 224-25 (quoting Thaddeus-X v. Blatter, 175 F.3d 378, 386 (6th
Cir. 1999) (en banc)). Accordingly, the law of this Circuit is clear that a prisoner
litigating a retaliation claim need not prove that he had an independent liberty interest
in the privileges that he was denied. Id. at 225.
A prisoner claiming that prison officials have retaliated against him for
exercising his rights under the First Amendment must prove that: (1) the conduct in
which he engaged was constitutionally protected; (2) he suffered adverse action at the
hands of prison officials; and (3) his constitutionally protected conduct was a
substantial motivating factor in the defendants' conduct." Carter v. McGrady, 292
F.3d 152, 158 (3d Cir. 200)). An adverse action is one sufficient to deter a person of
16
ordinary firmness from exercising his rights. Allah v. Seiverling, 229 F.3d 220, 225
(3d Cir. 2000); see also Mitchell v. Horn, 318 F.3d 523, 530 (3d Cir. 2003); Rauser
v. Horn, 241 F.3d 330, 333-34 (3d Cir. 2001)). The crucial third element, causation,
requires a plaintiff to prove either (1) an unusually suggestive temporal proximity
between the protected activity and the allegedly retaliatory action, or (2) a pattern of
antagonism coupled with timing to establish a causal link. See Lauren W. ex rel. Jean
W. v. DeFlaminis, 480 F.3d 259, 267 (3d Cir. 2007); Krouse v. American Sterilizer
Co., 126 F.3d 494, 503-04 (3d Cir. 1997)).
Once a plaintiff has made a prima facie case, the burden shifts to the
defendants to prove by a preponderance of the evidence that they "would have made
the same decision absent the protected conduct for reasons reasonably related to
penological interest." Carter, 292 F.3d at 158. When analyzing a retaliation claim,
courts are to bear in mind that the task of prison administrators and staff is difficult,
and the decisions of prison officials require deference, particularly where prison
security is concerned. Rauser, 241 F.3d at 334.
Applying the foregoing legal guidelines together with the prevailing pleading
standards applicable in federal court, we conclude that Hagan has adequately stated
a claim for First Amendment retaliation against each of the named defendants. Any
fair reading of the second amended complaint reveals that Hagan has made a number
17
of specific allegations against each named defendant with respect to their various
alleged decisions to deprive him of medical care and treatment, and that such actions
were allegedly undertaken specifically to retaliate against him for filing grievances
and other litigation against prison staff. Contrary to the defendants’ suggestions
otherwise, Hagan does not appear to be relying solely on temporal proximity to prove
causation in this case; he has alleged that on numerous instances the defendants
specifically told him that he was being denied medical care, related evaluations, and
necessary medication specifically because he persisted in filing grievances against
prison staff and officials. Hagan is thus alleging specific instances of retaliatory
conduct, and alleging that the defendants informed him of the very retaliatory basis
for their actions. Accordingly, to the extent the defendants are contending that the
second amended complaint is deficient because it somehow fails to allege temporal
proximity to prove causation, we do not find that this is a basis to dismiss in this case
on the pleadings alone. Rather, liberally construed, we find that Hagan’s claims for
First Amendment retaliation are sufficiently pleaded and will not be dismissed at this
stage of the litigation.
D.
Hagan Has Adequately Pleaded a Conspiracy
Finally, the defendants argue that Hagan has failed to allege sufficient facts to
support his claim that the defendants conspired with one another to violate his rights.
18
Although the second amended complaint is not replete with specific allegations of
conspiratorial conduct, we find that Hagan has adequately state a claim that the
defendants conspired to violate his rights.
In order to plead a civil rights action based upon a claim of conspiracy, a
plaintiff must plead allegations that are
supported by facts bearing out the existence of the
conspiracy and indicating its broad objectives and the role
each defendant allegedly played in carrying out those
objectives. Bare conclusory allegations of “conspiracy” or
“concerted action” will not suffice to allege a conspiracy.
The plaintiff must expressly allege an agreement or make
averments of communication, consultation, cooperation, or
command from which such an agreement can be inferred.
Flanagan v. Shively, 783 F. Supp. 922, 928 (M.D. Pa. 1992). Furthermore, when
pleading a conspiracy claim, a plaintiff cannot rely upon subjective suspicion and
speculation. Young v. Kann, 926 F.2d 1396, 1405 n.16 (3d Cir. 1991). We are
mindful of these pleading requirements, which are considered together with the
standards of pleading applicable to all civil actions in federal court as defined in
Twombly and Iqbal, supra.
The defendants insist that the second amended complaint is entirely bereft of
any facts “that could even reasonably suggest the presence of an agreement or
concerted activity between the defendants.” (Doc. 45, at 5.) To the contrary, the
19
second amended complaint does contain a number of allegations that purport to
recount specific instances of concerted conduct by the defendants. Thus, Hagan
alleges that defendants Dolphin, Swisher and Harrington expressly “agreed” that
Hagan would be taken off of his medication in retaliation for continuing to file
grievances and related paperwork. (Doc. 28 ¶ 5-6.) Although the second amended
complaint is relatively short on specific facts to show an agreement among defendants
Marsh and Wetzel and the remaining three defendants, there are sufficient facts pled
to at least suggest the inference of an agreement, and we do not find that it would be
appropriate to dismiss this claim at the outset of the litigation without giving the
parties an opportunity to address it later on summary judgment when we may consider
matters developed in discovery beyond the pleadings. Thus, Hagan alleges that when
he approached defendant Marsh in August, 2013, about the problems he was having,
and specifically about Dolphin having deprived Hagan of his needed medication,
Marsh is alleged to have responded that “We have something planned for you. I think
you’ll like what we have planned and we don’t want anyone interfering with our
plans including S.A.U. staff or the D.O.J.” (Id. ¶ 35.) In another paragraph, Hagan
suggests that Wetzel was informed of the problems alleged with respect to Dolphin
and Swisher, and that he responded that Hagan should follow the treatment plan that
Dolphin had prescribed and stop filing grievances. (Id. ¶ 39.) Although these
20
averments are far from overwhelming, and remain to be proved, and may fail at a later
sage of these proceedings, they are sufficient at this point to permit Hagan’s
conspiracy claims to proceed.
III.
CONCLUSION
Accordingly, for the foregoing reasons, the defendants’ pending motions to
dismiss the second amended complaint will be denied. An appropriate order shall
issue separately.
/S/ MARTIN C. CARLSON
Martin C. Carlson
United States Magistrate Judge
Dated: October 15, 2014
21
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?