Mobley v. Wetzel et al

Filing 157

ORDER: 1. MJ Schwab's R and R 154 is adopted.2. The mtn 138 to dismiss filed by Dft Roth is granted, and Roth is dismissed from this action.3. The mtn 135 to dismiss filed by Dfts Hreibe and Jabbour is granted, and these dfts are dismisse d from this action.4. The mtn 132 to dismiss filed by Dfts Bickell, Oppman, Garman, Eckard, Kozak, Price, Weidel, Harker, Wagman, Feathers, Williams, Hoffmaster, Showalter, Stover, Wetzel, Varner, and McCorkle is granted in part anddenied in part.5 . With respect to Dfts Oppman, Kozak, Weidel, Harker, Wagman, Feathers, Williams, Hoffmaster, Stover, Varner, and McCorkle, the motion 132 is granted, and these dfts are dismissed from this action.6. With respect to Dfts Bickell, Garman, Eckard, Pr ice, Showalter, and Wetzel, the motion 132 is denied.7. Mobleys Eighth Amendment conditions-of-confinement claim will proceed against Dfts Bickell, Garman, Eckard, Price, Showalter, and Wetzel.8. The mtn to dismiss 131 filed by Dfts Long, Dively, Gomes, Keith, Parkes, and Trimai is granted in part and denied in part.9. With respect to Dfts Long, Dively, Gomes, and Trimai, the mtn 131 is granted, and these dfts are dismissed from the action.10. With respect to Keith and Parkes, the mtn [131 ] is denied. Mobleys First Amendment Retaliation claim against Keith will proceed, and Mobleys Eighth Amendment medical claim against Parkes will proceed.11. Pltfs state-law negligence claim against Bickell and Wetzel is dismissed.12. This action is remanded to MJ Schwab for further disposition. Signed by Honorable William W. Caldwell on 3/31/16. (ma)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
GERRY MOBLEY JR.,
Plaintiff
vs.
JOHN WETZEL, et al.,
Defendants

:
:
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: CIVIL NO. 1:CV-14-0035
:
:
(Judge Caldwell)
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:
:

ORDER

THE BACKGROUND OF THIS ORDER IS AS FOLLOWS:
Gerry Mobley Jr., currently an inmate at the state correctional institution in
Albion, Pennsylvania, filed this lawsuit against numerous defendants alleging several
civil-rights violations stemming mainly from his confinement at the state correctional
institution in Huntingdon, Pennsylvania.
The magistrate judge has filed a report and recommendation (Doc. 154),
recommending that certain claims in the second amended complaint be dismissed and
that others proceed. We deal here with the objection (Doc. 155) of defendant, John
Wetzel, the secretary of the Pennsylvania Department of Corrections, to the
recommendation that an Eighth Amendment conditions-of-confinement claim be allowed
to proceed against him. Wetzel argues that Plaintiff fails to allege Wetzel’s personal
involvement, a necessary element of a civil-rights claim. Evancho v. Fisher, 423 F.3d
347, 353 (3d Cir. 2005)(personal involvement in the alleged wrongs is necessary for the

imposition of liability in a civil-rights action). Instead, Defendant is being sued simply
because he is in a supervisory position, which is insufficient. Id. (civil-rights liability
“cannot be predicated solely on the operation of respondeat superior”).
Defendant does not challenge the magistrate judge’s recitation of the
pertinent allegations. We quote from the report:
Here, we find that Mobley has stated an Eighth Amendment
conditions of confinement claim against defendants Garman,
Bickell, Price, Wetzel, Showalter, and Eckard. Mobley alleges
that from the time he entered SCI Huntingdon, June 18, 2010,
up until the time when he was transferred to SCI Houtzdale,
July 23, 2013, he was subjected to mold, mildew, dust, rust,
heat, humidity, cigarette smoke, poor air ventilation and
circulation, rat feces, spiders, spider webs, and “little brown
bugs.” Doc. 126 at ¶¶ 39, 41, 47, 52, 78, 88, 89, 96, 97, 98,
106, 110, 112, 315, 320. Mobley further alleges that these
hazardous conditions were making him sick, aggravating his
asthma and allergies, and were causing him anxiety,
headaches, coughing, watery eyes, difficulty breathing, and
lack of sleep. Id. at ¶¶ 45, 47, 49, 58, 63, 91, 102, 301, 384.
Mobley also alleges that the defendants knew of these
hazardous conditions and the harmful effects they were
having on him because he continuously made complaints to
them; yet despite having such knowledge, via his complaints,
Mobley contends that the defendants would not address the
conditions, nor would they transfer him to a different facility.
Id. at ¶¶ 120, 129, 302, 303, 315, 329, 399, 419, 458, 487;
doc. 151 at 26.
(Doc. 154, magistrate judge’s report at ECF pp. 35-36).
The magistrate judge reasoned that these allegations stated an Eighth
Amendment claim against the named defendants, including Wetzel, because Plaintiff had
“sufficiently alleged that these defendants were made aware of a dangerous, ongoing
situation, and by failing to take action, they acquiesced in that situation.” (Id. at ECF p.
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36). In support, the magistrate judge cited Marks v. Corizon Health Care Inc., No. 13-CV0726, 2014 WL 4252430, at *6 (M.D. Pa. 2014).
We agree with the magistrate judge. The key here are the allegations
indicating that the conditions were ongoing. For an ongoing constitutional violation,
supervisory officials, including the secretary of the Department of Corrections, can be
held liable for failing to respond to an inmate’s complaints. See Atkinson v. Taylor, 316
F.3d 257, 270-71 (3d Cir. 2003). See also Merrell v. Lawler, No. 09-CV-1093, 2010 WL
235109, at *5 (M.D. Pa. Jan. 15, 2010)(Caldwell, J.)(“Personal involvement on the part of
a supervisory official in the chain of command may be shown by his knowledge of and
acquiescence in an ongoing constitutional violation.”)(citing Atkinson).
Accordingly, this 31st day of March, 2016, upon consideration of the
magistrate judge’s report (Doc. 154) and the objections thereto (Doc. 155), it is ordered
that:
1. The magistrate judge’s report (Doc. 154) is adopted.
2. The motion (Doc. 138) to dismiss filed by Defendant
Roth is granted, and Roth is dismissed from this action.
3. The motion (Doc. 135) to dismiss filed by Defendants
Hreibe and Jabbour is granted, and these defendants are
dismissed from this action.
4. The motion (Doc. 132) to dismiss filed by Defendants
Bickell, Oppman, Garman, Eckard, Kozak, Price, Weidel,
Harker, Wagman, Feathers, Williams, Hoffmaster, Showalter,
Stover, Wetzel, Varner, and McCorkle is granted in part and
denied in part.

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5. With respect to Defendants Oppman, Kozak, Weidel,
Harker, Wagman, Feathers, Williams, Hoffmaster, Stover,
Varner, and McCorkle, the motion (Doc. 132) is granted, and
these defendants are dismissed from this action.
6. With respect to Defendants Bickell, Garman, Eckard,
Price, Showalter, and Wetzel, the motion (Doc. 132) is denied.
7. Mobley’s Eighth Amendment conditions-of-confinement
claim will proceed against Defendants Bickell, Garman,
Eckard, Price, Showalter, and Wetzel.
8. The motion to dismiss (Doc. 131) filed by Defendants
Long, Dively, Gomes, Keith, Parkes, and Trimai is granted in
part and denied in part.
9. With respect to Defendants Long, Dively, Gomes, and
Trimai, the motion (Doc. 131) is granted, and these
defendants are dismissed from the action.
10. With respect to Keith and Parkes, the motion (Doc. 131)
is denied. Mobley’s First Amendment Retaliation claim
against Keith will proceed, and Mobley’s Eighth Amendment
medical claim against Parkes will proceed.
11. Plaintiff’s state-law negligence claim against Bickell and
Wetzel is dismissed.
12. This action is remanded to the magistrate judge for
further disposition.

/s/William W. Caldwell
William W. Caldwell
United States District Judge

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