Broussard v. Ebbert et al

Filing 12

MEMORANDUM re pltf's MOTION for Leave to Proceed in forma pauperis 2 filed by Dermont L. Broussard (Order to follow as separate docket entry)Signed by Honorable William W. Caldwell on 9/14/15. (ma)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
DERMONT L. BROUSSARD,

:
:
:
:
:
:
:
:
:

Plaintiff
vs.
DAVID J. EBBERT, et al.,
Defendants

CIVIL NO. 1:CV-15-1568
(Judge Caldwell)

MEMORANDUM
I.

Introduction
On August 4, 2015, the pro se plaintiff, Dermont Ladale Broussard, a

federal inmate housed at the United States Penitentiary at Lewisburg (USP Lewisburg),
Pennsylvania, filed this civil-rights action. (Doc. 1). He also seeks leave to proceed in
forma pauperis. (Doc. 2). Broussard alleges that he was subjected to excessive force
and to a sexual assault by prison staff following a December 28, 2014, Special
Management Unit (SMU) cell extraction. He also claims staff destroyed his personal
property during the event. Named as defendants are Warden David Ebbert, Michael D.
Tapelski and Mr. C. Darnell Strolde.
The Complaint is before the court for preliminary screening pursuant to 28
U.S.C. § 1915A and 28 U.S.C. § 1915(e)(2)(B)(ii). Upon screening the Complaint, the
court will grant Broussard’s request to proceed in forma pauperis but dismiss the
Complaint pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) due to Broussard’s failure to state a
claim on which relief may be granted against the named defendants. Broussard,

however, will be given leave to file an amended complaint specifically identifying those
Bureau of Prison (BOP) and/or USP Lewisburg officials personally responsible for
allegedly violating his constitutional rights by using excessive force against him, sexually
assaulting him and destroying his personal property on December 28, 2014.

II.

Standard of Review
When a litigant seeks to proceed in forma pauperis, 28 U.S.C. § 1915

requires the court to screen the complaint. Likewise, when a prisoner seeks redress from
a government defendant in a civil action, whether proceeding in forma pauperis or not,
the court must screen the complaint. See 28 U.S.C. § 1915A. Both 28 U.S.C. §
1915(e)(2)(B) and § 1915(A) give the court the authority to dismiss a complaint if it is
frivolous, malicious, fails to state a claim on which relief may be granted, or seeks
monetary relief from a defendant who is immune from such relief. See 28 U.S.C. §
1915(e)(2)(B)(i)-(iii); 28 U.S.C. § 1915A(b)(1)-(2). See also Ball v. Famiglio, 726 F.3d
448, 452 (3d Cir. 2013)(a federal court may dismiss an action sua sponte under the
screening provisions of 28 U.S.C. § 1915(e)(2)(B) and § 1915A if “the action is frivolous
or malicious, fails to state a claim upon which relief may be granted, or seeks monetary
relief from a defendant who is immune from such relief”)(internal quotation marks
omitted).
“The legal standard for dismissing a complaint for failure to state a claim
under § 1915(e)(2)(B)(ii) is the same as that for dismissing a complaint pursuant to a
motion filed under Rule 12(b)(6) of the Federal Rules of Civil Procedure.” See Davis v.

-2-

Samuels, 608 F. App’x 46, 48 (3d Cir. 2015)(nonprecedential)(citing Allah v. Seiverling,
229 F.3d 220, 223 (3d Cir. 2000)).
When reviewing a complaint under 12(b)(6), the court must accept all
factual allegations as true and construe them in the light most favorable to the nonmoving party. Pearson v. Sec’y Dept. of Corr., 775 F.3d 598, 604 (3d Cir. 2015). To
survive a motion to dismiss under Rule 12(b)(6), a complaint must contain sufficient “facts
to state a claim to relief that is plausible on its fact.” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570, 127 S.Ct. 1955, 1974, 167 L.Ed.2d 929 (2007). While a complaint need only
contain "a short and plain statement of the claim," Fed. R. Civ. P. 8(a)(2), and detailed
factual allegations are not required, Twombly, 550 U.S. at 555, 127 S.Ct. at 1964, the
complaint must set forth sufficient factual allegations “to raise a right to relief above the
speculative level . . .” Id. at 570, 127 S.Ct. at 1965. "The plausibility standard is not akin
to a ‘probability requirement,' but it asks for more than a sheer possibility that a defendant
has acted unlawfully." Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173
L.Ed.2d 868 (2009)(quoting Twombly, 550 U.S. at 556, 127 S.Ct. at 1965). "[L]abels and
conclusions" are not enough, and a court is "‘not bound to accept as true a legal
conclusion couched as a factual allegation.'" Twombly, 550 U.S. at 555, 127 S.Ct. at
1965 (citing Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 2944, 92 L.Ed.2d 209
(1986)). The court may also rely on exhibits attached to the complaint and matters of
public record. Sands v. McCormick, 502 F.3d 263, 268 (3d Cir. 2007).
A complaint filed by a pro se plaintiff must be liberally construed and “held
‘to less stringent standards than formal pleadings drafted by lawyers.’” Fantone v. Latini,

-3-

780 F.3d 184, 193 (3d Cir. 2015)(quoting Haines v. Kerner, 404 U.S. 519, 520-21, 92
S.Ct. 594, 596, 30 L.Ed.2d 652 (1972)); see also Erickson v. Pardus, 551 U.S. 89, 94,
127 S.Ct. 2197, 2200, 167 L.Ed.2d 1081 (2007). Nonetheless, the complaint still “must
contain allegations permitting ‘the reasonable inference that the defendant is liable for the
misconduct alleged.’” Jackson v. Div. of Developmental Disabilities, 394 F. App’x 950,
951 n.3 (3d Cir. 2010)(nonprecedential)(quoted case omitted).
Pro se litigants are to be granted leave to file a curative amended complaint
even when a plaintiff does not seek leave to amend, unless such an amendment would
be inequitable or futile. See Phillips v. Cnty. of Allegheny, 515 F.3d 224, 245-46 (3d Cir.
2008).
With these principles in mind, we set forth the background to this litigation,
as Plaintiff alleges it.

III.

Background
Broussard’s three-page Complaint is full of legal assertions and few factual

allegations.1 Yet it is possible to discern the following from the Complaint in conjunction
with the exhibits attached to Plaintiff’s motion to proceed in forma pauperis: On
December 28, 2014, Broussard was housed in J Block at USP Lewisburg. At
approximately 7:35 a.m., Broussard was involved with unidentified prison staff in a useof-force incident allegedly necessitated by his refusal to submit to hand restraints to be
removed from his SMU cell. (Doc. 2, ECF p. 5). Broussard allegedly became

1

Portions of Broussard’s Complaint are indiscernible due to his poor penmanship and
failure to leave a line of blank space between each written line of text.

-4-

argumentative and “showed signs of imminent violence.” (Id.) He also would not allow
his cellmate to leave the cell or speak with staff. (Id.)
Broussard claims staff used excessive force when extracting him from his
cell. He reports the event was videotaped. (Doc. 1, ECF p. 3). Broussard was then
stripped naked, placed in leg shackles, waist chain, and hand cuffs with a “black box that
was double wrapped.” (Id.) While restrained, he was sexually assaulted by unidentified
staff. Finally, personal property was either confiscated or destroyed by prison staff during
this event. See Doc. 2, ECF pp. 6-7.
Broussard seeks five million dollars in damages.

IV.

Discussion
A.

Failure to State a Claim Against the Named Defendants
To state a viable § 1983 claim, a plaintiff must plead two essential

elements: (1) the conduct complained of was committed by a person acting under color of
state law; and (2) the conduct deprived the plaintiff of a right, privilege, or immunity
secured by the Constitution or laws of the United States. Natale v. Camden Cnty. Corr.
Facility, 318 F.3d 575, 580-81 (3d Cir. 2003). Personal involvement in the alleged
wrongdoing is necessary for the imposition of liability in a civil-rights action. Evancho v.
Fisher, 423 F.3d 347, 353 (3d Cir. 2005); Sutton v. Rasheed, 323 F.3d 236, 249-50 (3d
Cir. 2003). A supervisory defendant may be liable if he directed, or knew of and
acquiesced in, the deprivation of a plaintiff’s constitutional rights. Rode v. Dellarciprete,
845 F.2d 1195, 1207-08 (3d Cir. 1988). Liability cannot be imposed on a defendant in a
§ 1983 claim based on a respondent superior theory. Id.
-5-

Broussard does not mention Warden Ebbert, Michael Tapelski or C. Darnell
Strolde anywhere within the text of the Complaint. Likewise, none of their names
appears in the cited exhibits attached to his motion to proceed in forma pauperis.
Accordingly, Broussard has failed to state a clam for relief against any of the named
defendants. See Evancho, 423 F.3d at 353. Thus, the Complaint will be dismissed
pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii).

B.

Leave to Amend
“[I]f a complaint is vulnerable to [Rule] 12(b)(6) dismissal, a district court

must permit a curative amendment, unless an amendment would be inequitable or futile.”
Phillips, 515 F.3d at 236. In this instance, it is possible that Broussard will be able to cure
the identified deficiencies of his Complaint by amendment. As such, Broussard will be
granted twenty-one days to file an amended complaint. If Broussard decides to file an
amended complaint, he is advised that it must contain the same docket number as the
instant action and should be labeled “Amended Complaint.” In addition, the "amended
complaint must be complete in all respects. It must be a new pleading which stands by
itself as an adequate complaint without reference to the complaint already filed." Young
v. Keohane, 809 F. Supp. 1185, 1198 (M.D. Pa. 1992). Broussard is advised that any
amended complaint he may file supersedes the original complaint and must be “retyped
or reprinted so that it will be complete in itself including exhibits.” M.D. Pa. LR 15.1.
Consequently, all causes of action alleged in the original complaint which are not alleged
in the amended complaint will be waived.

-6-

Broussard is also advised that his amended complaint must be concise and
direct. See Fed. R. Civ. P. 8(d). Each allegation must be set forth in an individually
numbered paragraphs in short, concise and simple statements. Id. The allegations
should be specific enough as to time and place, and should identify the specific person or
persons responsible for the deprivation of his constitutional rights and what each
individual did that led to deprivation of his rights. Iqbal, 556 U.S. at 676, 129 S.Ct. at
1948. Stated more simply, Broussard should provide facts supportive of his basic claim
against each defendant. This information should provide answers to the basic questions
of who was involved, what action each defendant took that violated his constitutional
rights, as well as where and when the alleged events took place. Broussard must also
specify the relief he seeks with regard to each claim.
Broussard’s failure to file an appropriate amended complaint within the
required time will result in his lawsuit being dismissed pursuant to 28 U.S.C. §
1915(e)(2)(B)(ii) for failure to state a claim on which relief may be granted. Finally,
Broussard is also cautioned that illegible submissions will be returned to him without
consideration.
An appropriate order follows.

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

Date: September 15, 2015

-7-