Roque v. Department of Correction Lebanon County Correction Facility et al

Filing 7

MEMORANDUM re Complaint 1 filed by Jorge Luis Roque (Order to follow as separate docket entry)Signed by Honorable Sylvia H. Rambo on 9/6/16. (ma)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
JORGE LUIS ROQUE,
Plaintiffs
vs.
DEPARTMENT OF CORRECTION
LEBANON COUNTY
CORRECTIONAL FACILITY,
et al.,
Defendants

:
:
:
:
:
:
:
:
:
:
:
:

CIVIL NO. 1:16-CV-01032

(Judge Rambo)

MEMORANDUM
Background
On May 13, 2016, Jorge Luis Roque, an inmate
confined at the State Correctional Institution at
Houtzdale, located in Houtzdale, Pennsylvania (“SCIHoutzdale”), filed a pro se civil rights complaint
pursuant to 42

U.S.C. § 1983. (Doc. 1.)

Roque claims

that he was assaulted by three other inmates while
housed at the Lebanon County Correctional Facility
during the months of October and November, 2015, and
that he received inadequate medical care for the
injuries he sustained.(Id.)

In the caption of the complaint as well as the
body of the complaint Roque names the following
individuals allegedly employed at the Lebanon County
Correctional Facility: (1) Robert J. Karnes, Warden; (2)
John Santoni, Sergeant; and (3) Dustin Gonzalez, (4) Tim
Fierro and (5) Nick Derr, correctional officers. (Id.)
Roque also names as a defendant the Lebanon County
Correctional Facility. (Id.)
Beyond naming Defendants Karnes, Fierro and
Derr, Roque does not set forth in the complaint any
factual allegations against them. (Id.)

With respect to

Defendant Gonzalez, Roque claims that he told Defendant
Gonzalez that he could not be placed on Block 2 because
he had enemies on Block 2 and that his safety would be
in jeopardy if placed on that block. (Id. at 2.)
However, there is no indication that Defendant Gonzalez
placed Roque on Block 2. (Id. at 2-3.)

Instead, Roque

alleges that Defendant Gonzalez placed him in the
“Security Housing Unit” (“SHU”) and that he ultimately
was found guilty of a misconduct for “refusing to lock
up by the Disciplinary Board on October 16, 2015, and

2

sentenced to 20 days of confinement.” (Id.) Roque then
alleges that he was released from the SHU on November 2,
2015. (Id.)
After being released from the SHU, Roque alleges
he was escorted to Block 2 and that he informed an
unidentified officer he could not be placed on Block 2
because his “enemies” were housed on that block. (Id.)
Roque alleges that the unidentified officer informed
Defendant Santoni of Roque’s concerns about his safety
if he was placed on Block 2 but Defendant Santoni told
the officer to write Roque up for disobeying an order if
he refused to be housed on Block 2. (Id.)

Apparently,

when informed that he would be issued a misconduct if he
refused to be housed on Block 2, Roque acquiesced and
allowed the officer to place him on that block.(Id.)
Roque then alleges that he was only on Block 2 for 15 to
20 minutes when three other inmates assaulted him. (Id.)
Roque claims that he was repeatedly punched in the face
and sustained a broken jaw bone. (Id.)
Roque does not name any medical personnel other
than to state that the nurses, physician assistants and

3

physicians did not provide him with adequate medical
care for the broken jaw bone. (Id. at 4-5.) However, he
admits that he received medical care and that ultimately
on November 24, 2015, he underwent surgery at the
Hershey Medical Center. (Id.)
Along with the complaint, Roque filed an
authorization to have funds deducted from his prison
trust fund account to have the filing fee paid in
installments. (Doc. 2.) However, Roque did not file a
motion for leave to proceed in forma pauperis under 28
U.S.C. § 1915. On June 3, 2016, an Administrative Order
was issued directing Roque within thirty (30) days to
either pay the filing fee or file a motion to proceed in
forma pauperis.

(Doc. 4.) Subsequently, on June 20,

2016, Roque filed a motion for leave to proceed in forma
pauperis. (Doc. 5.)
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

4

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.1

Furthermore, although

there is not a heightened pleading standard with respect
to complaints filed by prisoners, a complaint in order
to comply with Rule 8 of the Federal Rules of Civil
Procedure must contain at least a modicum of factual
specificity, identifying the particular conduct of the
defendants that is alleged to have harmed the plaintiff,
so that the court can determine that the complaint is
not frivolous and a defendant has adequate notice to
frame an answer. A civil rights complaint complies with
this standard if it alleges the conduct violating the
plaintiff’s rights, the time and place of that conduct,
and the identity of the responsible officials.

1.

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.
5

For the reasons outlined below, Roque’s motion
for leave to proceed in forma pauperis will be construed
under the PLRA as a motion to proceed without full
prepayment of the filing fee and granted, and Roque’s
complaint will be dismissed for failure to state a claim
and he will be granted an opportunity to submit an
amended complaint.
Discussion
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."

Deutsch v. United

States, 67 F.3d 1080, 1083 (3d Cir. 1995).

It also has

been determined that "the frivolousness determination is

6

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.

Fed.R.Civ.P. 12(b)(6) is the basis for

this type of dismissal.

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
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

7

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,___U.S.___, 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

8

a “‘plausible claim for relief.’” Id. at 211 (quoted
case omitted).
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.
277, 285 (1980).2

Martinez v. California, 444 U.S.

A prerequisite for a viable civil

rights claim is that a defendant directed, or knew of
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.
2.

9

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).
First, a prison is not an entity subject to suit
under 42 U.S.C. § 1983. The United States Supreme Court
established in Will v. Michigan Dept. of State Police,
491 U.S. 58, 64 (1989), that "a State is not a person
within the meaning of § 1983."

Ordinarily, only actual

persons are subject to suit under § 1983.

Id. at 71.

Furthermore, a prison is not a person within the meaning
of § 1983.

Fischer v. Cahill, 474 F.2d 991, 992 (3d

Cir. 1973); Smith v. Samuels, 2013 WL 5176742, *4
(M.D.Pa. 2013)(“Courts have repeatedly recognized that a
prison or correctional facility is not a person for
purposes of civil rights liability.”)(Nealon, J.); see
also Ellman v. Prime Care, Inc., 2014 WL 2601728, *2
(M.D.Pa. 2014)(Nealon, J.); Williams v. Lackawanna Count
Prison, 2010 WL 1491132, *1 n.2 (M.D.Pa. 2010)(McClure,

10

J.). Consequently, Roque’s claims against the Lebanon
County Correctional Facility will be dismissed without
leave to amend.
Second, with respect to Defendants Karnes,
Gonzalez, Fierro and Derr there are no factual
allegations in the complaint from which it could be
concluded that those defendants in any way violated
Roque’s right under the United States Constitution or
other federal laws. Clearly, the complaint as it relates
to those defendants fails to meet the pleading
requirements of Rule 8, Iqbal and Twombly.
Arguably the claims against Defendant Santoni
are based on the Eighth Amendment requirement that
prison officials protect an inmate from assaultive
behavior engaged in by other inmates.

However, in order

for liability to attach the prison official must be
deliberately indifferent to the need for security or
safety measures to protect the inmate.
The Eighth Amendment’s prohibition against the
infliction of cruel and unusual punishment has been
11

interpreted to impose upon prison officials a duty to
take reasonable measures “‘to protect prisoners from
violence at the hands of other prisoners.’” Hamilton v.
Leavy, 117 F.3d 742, 746 (3d Cir. 1997) (quoting Farmer
v. Brennan, 511 U.S. 825, 833 (1994)). Although, “[i]t
is not . . . every injury suffered by one prisoner at
the hands of another that translates into constitutional
liability for prison officials responsible for a
victim’s safety,” “[b]eing violently assaulted in prison
is simply not ‘part of the penalty that criminal
offenders pay for their offenses against society.’”
Farmer, 511 U.S. at 834 (quoting Rhodes v. Chapman, 452
U.S. 337, 345 (1981)).

A plaintiff, however, 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 under § 1983. Davidson v. Cannon,
474 U.S. 344, 347-48 (1986). To succeed, a prisoner must
show that: (1) he was incarcerated under conditions
12

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.
In determining whether a defendant was
deliberately indifferent, the court must “focus [on]
what a defendant’s mental attitude actually was (or is),
rather than what it should have been (or should be).”
Hamilton v. Leavy, 117 F.3d at 747. It is not an
objective test for deliberate indifference; rather, the
court must look to what the prison official actually
knew, rather than what a reasonable official in his
position should have known. “A prison official’s
knowledge of a substantial risk is a question of fact
and can, of course, be proved by circumstantial
evidence.” Id. In other words, it may be concluded that
a prison official knew of a substantial risk from the
very fact that the risk was obvious. The Farmer Court
13

explained in hypothetical terms the type of
circumstantial evidence sufficient for a finding of
actual knowledge on the part of a prison official:
[I]f an Eighth Amendment plaintiff presents
evidence showing that a substantial risk of
inmate attacks was ‘longstanding, pervasive,
well-documented, or expressly noted by prison
officials in the past,’ and the circumstances
suggest that the defendant-official being sued
had been exposed to information concerning the
risk and thus ‘must have known’ about it, then
such evidence could be sufficient to permit a
trier of fact to find that the defendantofficial had actual knowledge of the risk.
Farmer, 511 U.S. at 842-43. Farmer, 511 U.S. at 842-43.
Roque does not specify the inmates who assaulted
him, why they were a threat to him or what information
was relayed to Defendant Santoni regarding those three
inmates. There are no allegations in the complaint from
which it can be concluded that there was a substantial
risk of Roque being attacked by inmates housed on Block
2 and that Defendant Santoni was exposed to that
information. Consequently, the claim against Defendant
Santoni will be dismissed with leave to file an amended
complaint.
14

Finally, an inmate can invoke the protections of
the Cruel and Unusual Punishments Clause of the Eighth
Amendment when he receives inadequate medical care.
Roque, however, has failed to identify any of the prison
official who provided him with medical care or set forth
allegations sufficient to raise a cognizable Eighth
Amendment claim.
Claims based upon the Cruel and Unusual
Punishments Clause have both objective and subjective
components.

Wilson v. Seiter,

501 U.S. at 298.

Serious hardship to the prisoner is required to satisfy
the Eighth Amendment's objective component. Id.

The

subjective component is met if the person or persons
causing the deprivation acted with "a sufficiently
culpable state of mind".

Id.

The objective component of an Eighth Amendment
medical care claim, i.e., whether a plaintiff's medical
needs were serious, has its roots in contemporary
standards of decency. Hudson v. McMillian, 503 U.S. 1
(1992).

A medical need is serious if it is one that has
15

been diagnosed by a physician as mandating treatment or
is one that is so obvious that even a lay person would
easily recognize the necessity for a doctor's attention.
Johnson v. Busby, 953 F.2d 349, 351 (8th Cir. 1991);
Monmouth County Correctional Institution Inmates v.
Lanzaro, 834 F.2d 326, 347 (3d Cir.

1987); Ramos v.

Lamm, 639 F.2d 559, 575 (10th Cir. 1980), cert. denied,
450 U.S. 1041 (1981); West v. Keve, 571 F.2d 158, 162-63
n.6 (3d Cir. 1978).

The serious medical need element

contemplates a condition of urgency, one that may
produce death, degeneration, or extreme pain.

See

Monmouth County Correctional Institution Inmates v.
Lanzaro, 834 F.2d at 347; Archer v. Dutcher, 733 F.2d
14, 16-17 (2d Cir. 1984); Todaro v. Ward, 565 F.2d 48,
52 (2d Cir. 1977).
Assuming, without deciding, that Roque’s medical
need was serious in the constitutional sense, the
allegations in the complaint reveal that Roque received
medical attention.

The allegations contained within the

complaint establish efforts by the medical personnel at
16

Lebanon County Correctional Facility to provide Roque
with necessary medical care, and an attendant mental
state that falls short of deliberate indifference.
Roque received treatment and was ultimately sent to
Hershey Medical Center for surgery.3
At best, Roque’s complaint demonstrates his
disagreement with the scope and extent of treatment by
the medical providers at Lebanon County Correctional
Facility.

Roque’s disagreement with the course of

treatment, however, does not serve as a predicate to
liability under § 1983.

Furthermore, a complaint that

a physician or a medical department was

“negligent in

diagnosing or treating a medical condition does not

Roque in the complaint alleges that alleges that he
sought medical care at the prison medical department
and that “[e]ach time [he] was attended to by the nurse
assistants, Nures (sic), Physician Assistant, and
Physician. In each instance, defendants interpreted
injury incorrectly and nominally as an injury requiring
no further medical intervention. . . . The defendant
failed to recognize the significance of plaintiff
injury and subsequent error in diagnosis, failing to
provide proper care and treatment to plaintiff which
should have included additional testing and therapy
also surgery.”
3.

17

state a valid claim of medical mistreatment under the
Eighth Amendment.”

Estelle, 429 U.S. at 106.

More than

two decades ago, the Third Circuit held that “[w]hile
the distinction between deliberate indifference and
malpractice can be subtle, it is well established that
as long as a physician exercises professional judgment
his behavior will not violate a prisoner’s
constitutional rights.”

Brown v. Borough of which is in

the jurisdiction of the United States District Court for
the Western District of Pennsylvania, Chambersburg, 903
F.2d 274, 278 (3d Cir. 1990); see also

Spruill, 372

F.3d at 235 (“Allegations of medical malpractice are not
sufficient to establish a Constitutional violation.”).
When an inmate is provided with medical care and
the dispute is over the adequacy of that care, no Eighth
Amendment claim exists.

White v. Napoleon, 897 F.2d

103, 108-10 (3d Cir. 1990).

“A medical decision not to

order an X-ray, or like measures, does not represent
cruel and unusual punishment.
malpractice[.]”

At most it is medical

Estelle, 429 U.S. at 107.
18

A mere

difference of opinion between the inmate and the
prison’s medical staff regarding the diagnosis or
treatment that the inmate receives does not support a
claim of cruel and unusual punishment.

See McFadden v.

Lehman, 968 F. Supp. 1001 (M.D. Pa. 1997); Young v.
Quinlan, 960 F.2d 351, 358 n.18 (3d Cir. 1992).
Additionally, a non-physician defendant cannot be
considered deliberately indifferent for failing to
respond to an inmate’s medical complaints when the
inmate is already receiving treatment from the prison’s
medical staff.
(3d Cir. 1993).

See Durmer v. O’Carroll, 991 F.2d 64, 69
The key question is whether the

defendant has provided the plaintiff with some type of
treatment, despite whether it is what the plaintiff
wants. Farmer v. Carlson, 685 F. Supp. 1335, 1339 (M.D.
pa. 1988).
It appears that Roque is merely taking issue
with the medical judgment of nurses, physician
assistants and physicians who treated him at Lebanon
County Correctional Facility. In sum, negligence,
19

unsuccessful medical treatment, or medical malpractice
do not give rise to a § 1983 cause of action, and an
inmate’s disagreement with medical treatment is
insufficient to establish deliberate indifference.

See

Durmer v. O’Carroll, 991 F.2d at 69.
For the reasons set forth above, the instant
complaint will be dismissed, without prejudice, for
failure to state a claim on which relief may be granted
pursuant 28 U.S.C. § 1915(e)(2)(B)(ii).

Although the

complaint as filed fails to state a cause of action
against the defendants, it is possible that the
deficiencies may be remedies by amendment.
Consequently, Roque will be granted such opportunity.
Roque is also advised that the amended complaint must be
complete in all respects.

It must be a new pleading

which stands by itself without reference to the
complaint already filed.

Such amended complaint should

set forth his claims in short, concise and plain
statements.

It should specify which actions are alleged

as to which defendants.

If Roque fails to file an
20

amended complaint adhering to the standards set forth
above, this case will be closed.
An appropriate order will be entered.

s/Sylvia H. Rambo
SYLVIA H. RAMBO
United States District Judge

Dated: September 6, 2016

21