Almuhsin v. Warden of Dauphin C.P.
Filing
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MEMORANDUM (Order to follow as separate docket entry).Signed by Honorable Yvette Kane on 3/18/16. (sc)
UNITED STATES DISTRICT COURT
FOR THE
MIDDLE DISTRICT OF PENNSYLVANIA
AYYUB ALMUHSIN,
Plaintiff
vs.
WARDEN OF DAUPHIN COUNTY
PRISON, et al.,
Defendants
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No. 1:16-CV-00365
(Judge Kane)
MEMORANDUM
Background
On March 1, 2016, Plaintiff Ayyub Almuhsin, an inmate at
the Dauphin County Prison, Harrisburg, Pennsylvania filed a
complaint under 42 U.S.C. § 19831 against (1) the Warden of the
1. Plaintiff’s claims are set forth on a form civil right
complaint which are routinely provided to pro se litigants.
Plaintiff checked the line indicating that the action is filed
under 28 U.S.C. § 1331. 28 U.S.C. § 1331 states as follows: “The
district court shall have original jurisdiction of all actions
arising under the Constitution, laws, or treaties of the United
States.” It is also clear, however, that the action is filed
pursuant to 42 U.S.C. § 1983. Section 1983 reads, in relevant
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.
42 U.S.C. § 1983.
Dauphin County Prison,2 (2) Isaiah Rotan Rotan (“Rotan”), an
inmate at the Dauphin County Prison, and (3) several unnamed
correctional officers. (Doc. Nos. 1 & 1-1.)
In the complaint
Almuhsin claims that on November 13, 2015, he was stabbed four
times with a homemade shank by Rotan and that the correctional
officers after intervening subjected Plaintiff to excessive force.
Id.
He further claims that the correctional officers were
negligent in failing to search all inmates before they left their
cells for recreation, and if they had done so, they would have
discovered the shank. Id.
With respect to the claim of excessive
use of force, Plaintiff claims that after the stabbing he was
bleeding and complied with all of the correctional officers
commands and did not resist but after applying handcuffs and
placing him on the ground the correctional officers sprayed him
with “pepper spray” and then “dragged” him “down to administrative
lock down” where they punched, kicked and kneed him while in
handcuffs and bleeding from his wounds. Id.
With respect to the Warden of Dauphin County Prison,
there are no allegations leveled against the Warden indicating he
had any personal involvement in the incident.
As relief,
Plaintiff requests compensatory damages in a total amount of
$62,000.00. Id.
Along with the complaint, Plaintiff filed a
motion for leave to proceed in forma pauperis under 28 U.S.C. §
1915. (Doc. No. 2.)
2.
Plaintiff does not provide the name of the Warden.
2
The Prison Litigation Reform Act (the "PLRA"), Pub. L.
No. 104-134, 110 Stat. 1321 (April 26, 1996) imposed new
obligations on prisoners who file suit in federal court and wish
to proceed in forma pauperis under 28 U.S.C. § 1915, e.g., the
full filing fee ultimately must be paid (at least in a non-habeas
suit).
Also, a new section was added which relates to screening
complaints in prisoner actions.3
For the reasons outlined below,
Plaintiff will be granted in forma pauperis status, the complaint
will be dismissed and Plaintiff will be granted an opportunity to
submit an amended complaint.
Discussion
When considering a complaint accompanied by a motion to
proceed in forma pauperis, a district court may rule that process
should not be issued if the complaint is malicious, presents an
indisputably meritless legal theory, or is predicated on clearly
baseless factual contentions.
Neitzke v. Williams, 490 U.S. 319,
327-28 (1989); Wilson v. Rackmill, 878 F.2d 772, 774 (3d Cir.
1989).
Indisputably meritless legal theories are those "in which
either it is readily apparent that the plaintiff's complaint lacks
3.
Section 1915(e)(2) provides:
(2) Notwithstanding any filing fee, or any portion thereof,
that may have been paid, the court shall dismiss the case at
any time if the court determines that (A) the allegation of
poverty is untrue; or (B) the action or appeal (i) is
frivolous or malicious; (ii) fails to state a claim on which
relief may be granted; or (iii) seeks monetary relief
against a defendant who is immune from such relief.
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an arguable basis in law or that the defendants are clearly
entitled to immunity from suit . . . ."
Roman v. Jeffes, 904 F.2d
192, 194 (3d Cir. 1990) (quoting Sultenfuss v. Snow, 894 F.2d
1277, 1278 (11th Cir. 1990)).
The Supreme Court has recognized
that "a finding of factual frivolousness is appropriate when the
facts alleged rise to the level of the irrational or the wholly
incredible . . . ."
Denton v. Hernandez, 504 U.S. 25, 33 (1992);
see also Roman, 904 F.2d at 194 (baseless factual contentions
describe scenarios clearly removed from reality).
The Third
Circuit added that "the plain meaning of 'frivolous' authorizes
the dismissal of in forma pauperis claims that . . . are of little
or no weight, value, or importance, not worthy of serious
consideration, or trivial."
1080, 1083 (3d Cir. 1995).
Deutsch v. United States, 67 F.3d
It also has been determined that "the
frivolousness determination is a discretionary one," and trial
courts "are in the best position" to determine when an indigent
litigant's complaint is appropriate for summary dismissal.
Denton, 504 U.S. at 33.
Even though a complaint is not frivolous it still may be
dismissed under the screening provision of the PLRA if it fails to
state a claim upon which relief may be granted.
12(b)(6) is the basis for this type of dismissal.
Fed.R.Civ.P.
Under Rule
12(b)(6), we must “accept all factual allegations as true,
construe the complaint in the light most favorable to the
plaintiff, and determine whether, under any reasonable reading of
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the complaint, the plaintiff may be entitled to relief.” Fowler v.
UPMC Shadyside, 578 F.3d 203, 210 (3d Cir.2009) (quoting Phillips
v. County of Allegheny, 515 F.3d 224, 231 (3d Cir.2008)).
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, Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555,
127 S.Ct. 1955, 1964, 167 L.Ed.2d 929 (2007), a complaint must
plead “enough facts to state a claim to relief that is plausible
on its face.”
Id. at 570, 550 U.S. 544, 127 S.Ct. 1955 at 1974,
167 L.Ed.2d 929.
“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, 678, 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, Twombly, 550 U.S. at
555, 127 S.Ct. at 1964-65, and a court
“‘is not bound to accept
as true a legal conclusion couched as a factual allegation.’” Id.,
127 S.Ct. at 1965 (quoted case omitted).
In resolving the issue of whether a complaint states a
viable claim, we thus “conduct a two-part analysis.” Fowler,
supra, 578 F.3d at 210. First, we separate the factual elements
from the legal elements and disregard the legal conclusions. Id.
at 210-11.
Second, we “determine whether the facts alleged in the
complaint are sufficient to show that the plaintiff has a
“‘plausible claim for relief.’” Id. at 211 (quoted case omitted).
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A plaintiff, in order to state a viable § 1983 claim,
must plead two essential elements:
1) that the conduct complained
of was committed by a person acting under color of state law, and
2) that said conduct deprived the plaintiff of a right, privilege,
or immunity secured by the Constitution or laws of the United
States.
Natale v. Camden County Corr. Facility, 318 F.3d 575,
580-581 (2003);
Groman v. Township of Manalapan, 47 F.3d 628, 638
(3d Cir. 1995); Shaw by Strain v. Strackhouse, 920 F.2d 1135,
1141-42 (3d Cir. 1990).
A defendant's conduct must have a close causal
connection to plaintiff's injury in order for § 1983 liability to
attach.
Martinez v. California, 444 U.S. 277, 285 (1980).4
A
prerequisite for a viable civil rights claim is that a defendant
directed, or knew of and acquiesced in, the deprivation of a
plaintiff's constitutional rights.
See Monell v. Department of
Social Serv. of the City of N.Y., 436 U.S. 658, 694-95 (1978); Gay
v. Petsock, 917 F.2d 768, 771 (3d Cir. 1990); Rode v.
Dellarciprete, 845 F.2d 1195, 1207-08 (3d Cir. 1988).
Plaintiff must allege that each named defendant was
personally involved in the events or occurrences that underlie the
claim.
See Atkinson v. Taylor, 316 F.3d 257 (3d Cir. 2003),
4. The Martinez court explained: "Although a § 1983 claim has
been described as 'a species of tort liability,' Imbler v.
Pachtman, 424 U.S. 409, 417 [(1976)], it is perfectly clear that
not every injury in which a state official has played some part
is actionable under that statute." Id.
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(citations omitted).
Liability may not be imposed under Section
1983 on the principle of respondeat superior.
Capone v.
Marinelli, 868 F.2d 102, 106 (3d Cir. 1989) (citing Hampton v.
Holmesburg Prison Officials, 546 F.2d 1077, 1082 (3d Cir. 1976)).
Rather, “supervisory personnel are only liable for the § 1983
violations of their subordinates if they knew of, participated in
or acquiesced in such conduct.”
Id. at 106 n.7.
With respect to the Warden of the Dauphin County Prison,
there are no allegation in the complaint from which it could be
concluded that the Warden was involved in the incident which
occurred on November 13, 2015.
There is no basis to conclude that
he knew of, participated in or acquiesced in any unlawful conduct.
Consequently, the claims against the Warden will be dismissed.
As for inmate Rotan, he is a private party and not
employed by any state agency.
Only in rare situations will a
private party be considered a state actor. See Lugar v. Edmondson
Oil Co., 457 U.S. 922, 933 (1982).
Such a situation exists where
a private party conspires with an individual employed by the
state. Id.; Dennis v. Sparks, 449 U.S. 24, 27-28 (1980)(“Private
persons, jointly engaged with state official in the challenged
action, are acting ‘under color’ of law fo purposes of § 1983
actions.”).
There are no allegations in the complaint
establishing such a conspiracy.
An inmate of a state correctional
facility, unless involved in a conspiracy with state actors,
cannot be sued under § 1983. Simonton v. Tennis, 437 F. App’x 60.
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62 (3d Cir July 13, 2011); Lane v. Walsh, 2015 WL 3866043, at *6
(M.D.Pa. June 13, 2015).
Furthermore, Plaintiff has set forth no
other viable jurisdictional basis for suing Rotan.5 Consequently,
the claims against Rotan will be dismissed.
With regard to the correctional officers, Plaintiff does
not identify them by name and they are considered
defendants.
“John Doe”
There are essentially two claims against these “John
Doe” defendants: (1) a failure to protect claim, and (2) an
excessive force claim.
In the context of a correctional officer failing to
prevent assaults by other inmates, a plaintiff must prove more
than that he had a fight with another inmate, see Beard v.
Lockhart, 716 F.2d 544, 545 (8th Cir. 1983), and mere negligent
conduct that leads to serious injury of a prisoner by a prisoner
does not expose a prison official to liability. Davidson v.
Cannon, 474 U.S. 344, 347-48 (1986). To succeed, a prisoner must
show that: (1) he was incarcerated under conditions posing a
substantial risk of serious harm; (2) the defendant was “aware of
facts from which the inference could be drawn that a substantial
risk of serious harm exists”; (3) the defendant actually drew this
inference; and (4) the defendant deliberately disregarded the
apparent risk. Farmer, 511 U.S. at 834-37.
5. See 28 U.S.C. § 1367(a)(supplemental jurisdiction for state
law tort claims).
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Plaintiff has failed to allege sufficient facts to
establish a failure to protect claim.
There are no allegations
from which it could be concluded that the unknown correctional
officers were aware of facts from which it could be inferred that
Rotan posed a danger to Plaintiff and that they actually drew that
inference and disregarded the risk.
Consequently, the failure to
protect claims against the correctional officers will be
dismissed.
As for the excessive force claims, although prisoners
are protected from cruel and unusual punishment by the Eighth
Amendment, not all tortious conduct which occurs in prison rises
to the level of an Eighth Amendment violation.
See Howell v.
Cataldi, 464 F.2d 272, 277 (3d Cir. 1972) (Not all tortious
conduct redressable under state law constitutes cruel and unusual
punishment).
"Not every push or shove, even if it may later seem
unnecessary in the peace of the judge's chambers, violates a
prisoner's constitutional rights."
Johnson v. Glick, 481 F.2d
1028, 1033 (2d Cir.), cert. denied, 414 U.S. 1033 (1973).
If a
correctional officer uses physical force in pursuit of valid
penological or institutional goals, then the force used will
rarely, if ever, violate the Eighth Amendment.
See Whitley v.
Albers, 475 U.S. 312 (1986); Rhodes v. Chapman, 452 U.S. 337, 346
(1981).
In order to constitute cruel and unusual punishment, the
correctional officer's use of force must involve the "unnecessary
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and wanton infliction of pain."
Whitley, 475 U.S. at 319.
"Wanton" has been defined as requiring that the correctional
officer has intended to harm the inmate.
704 F.2d 491, 495 (10th Cir. 1983).
Sampley v. Ruettgers,
"Unnecessary" has been held
to require that the force used exceed that which appeared
reasonably necessary to maintain or restore discipline at the time
of the use of force. Id.
Finally, "pain" requires more than
momentary discomfort; the attack must have resulted in either
severe pain or a lasting injury. Id.
However, the United States Supreme Court in a later
ruling recognized that the use of force may constitute cruel and
unusual punishment even if the prisoner does not sustain serious
physical injuries.
Hudson v. McMillan, 503 U.S. 1, (1992).
The
Court added that the core judicial inquiry is whether force was
applied in a good faith effort to maintain or restore discipline
or maliciously and sadistically to cause harm.
A court must look to a number of factors to determine
whether the corrections officer, through his conduct, has "crossed
the constitutional line."
Johnson, 481 F.2d at 1033.
In Whitley,
the Supreme Court, relying on Johnson, listed the following
factors which a court should consider:
(1) the need for
application of force; (2) the relationship between the need and
the amount of force used; (3) the extent of injury inflicted; (4)
the extent of the threat to the safety of staff and inmates as
reasonably perceived by responsible officials on the basis of
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facts known to them; and (5) any attempts made to temper the
severity of the forceful response.
Whitley, 475 U.S. at 321.
It must also be kept in mind that a correctional
officer, to maintain control of inmates, must often make
instantaneous, on-the-spot decisions concerning the need to apply
force.
See Wolff v. McDonnell, 418 U.S. 539, 566-67 (1974).
Courts should be hesitant "to critique in hindsight decisions
necessarily made in haste, under pressure, and frequently without
the luxury of a second chance."
Whitley, 475 U.S. at 320.
Plaintiff has alleged that he was handcuffed, not
resisting and on the ground when pepper sprayed.
He also claims
that he was dragged to an administrative holding cell and while in
handcuffs was punched, kicked and kneed by the correctional
officers.
This allegedly occurred in spite of Plaintiff’s non-
resistance.
Based on these allegations, Plaintiff has
sufficiently stated an excessive force claim.
However, Plaintiff has not identified the correctional
officers responsible for the assault and, consequently, it is
impossible to serve the complaint. It is well-settled that the use
of John/Jane Doe defendants absent compelling reasons will not
suffice and the district court may dismiss such defendants if
plaintiff, after being granted a reasonable period of discovery,
fails to identify the defendants.
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Sheetz v. Morning Call, 130
F.R.D. 34 (E.D. Pa. 1990).
Thus, this court will grant Plaintiff
ninety (90) days from the date of this order to file an amended
complaint in which he properly identifies by name the correctional
officers who assaulted him.
Furthermore, within the same time
period Plaintiff may file an amended complaint against the Warden
of Dauphin County Prison and inmate Raton.
If plaintiff fails to
timely identify the correctional officers, they shall be dismissed
from this action under the authority of Sheetz.
Likewise, if
Plaintiff’s fails to file an amended complaint setting forth
claims against the Warden and inmate Raton, the case will be
closed.
An appropriate order will be entered.
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