Evans v. Kayes et al
MEMORANDUM re dft's MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM 11 (Order to follow as separate docket entry) Signed by Honorable William W. Caldwell on 4/3/17. (ma)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
CO JOE KAYES, et al.,
CIVIL NO. 1:CV-16-1098
The pro se plaintiff, Bryan Evans, filed this civil-rights action concerning
events that occurred while housed at the Schuylkill County Prison (the Prison), in Pottsville,
Pennsylvania.1 Evans alleges that in April 2016 he was assaulted by Prison staff and then
placed in a cell where he was assaulted by his cellmate. Named as Defendants are the
following SCP employees: Warden Eugene Berdanier and Corrections Officer (CO) Joe
Kayes. (ECF No. 1, Compl.)2
Presently before the court is Warden Berdanier’s Motion to Dismiss the
Complaint (ECF No. 11) based on Evans’ failure to state a claim against him. (ECF No. 11,
Berdanier’s Mot. to Dismiss).
According to the Pennsylvania Department of Corrections’ (DOC) inmate locator, Evans is
presently housed at the Waymart State Correctional Institution in Waymart, Pennsylvania.
Plaintiff spells “Berdanier” as “Berdenair.” We will use the correct spelling.
For the reasons discussed below, the court will grant Warden Berdanier’s
motion to dismiss based on his failure to state a claim against him. Evans, however, will be
granted leave to file an amended complaint. His failure to file an amended complaint will
result in this action proceeding only against CO Kayes.
Standard of Review
A motion to dismiss under Fed. R. Civ. P 12(b)(6) authorizes the dismissal of
a complaint “for failure to state a claim upon which relief can be granted.” Under Fed. R.
Civ. P. 12(b)(6), the district court 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 is entitled to relief.” Fowler v. UPMC
Shadyside, 578 F.3d 203, 210 (3d Cir. 2009) (quoting Phillips v. Cnty. of Allegheny, 515
F.3d 224, 231 (3d Cir. 2008)). 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.
Pursuant to Fed. R. Civ. P. 8(a), a complaint need only “include a short and
plain statement of the claim showing that the pleader is entitled to relief, in order to give the
defendant fair notice of what the claim is and the grounds upon which it rests.” “[T]he
factual allegations of a complaint ‘must be enough to raise a right to relief above the
speculative level’ and the complaining party must offer ‘more than labels and conclusions’
or ‘formulaic recitation of the elements of a cause of action.’” W. Run Student Hous.
Assocs., LLC. v. Huntington Nat’l Bank, 712 F.3d 165, 169 (3d Cir. 2013)(quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964, 167 L.Ed.2d 929 (2007)).
Legal conclusions are “not entitled to the assumption of truth.” Bistrian v. Levi, 696 F.3d
352, 365 (3d Cir. 2012)(citing Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 1949,
173 L.Ed.2d 868 (2009)).
Additionally, pro se pleadings must be liberally construed and “held ‘to less
stringent standards than formal pleadings drafted by lawyers.’” Fantone v. Latini, 780 F.3d
184 (3d Cir. 2015) (citing 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); Giles v. Kearney, 571 F.3d 318, 322 (3d Cir. 2009). 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 Estate of Lagano v. Bergen Cnty. Prosecutor’s Office, 769 F.3d 850, 861 (3d Cir.
2014). A complaint that sets forth facts which affirmatively demonstrate that the plaintiff
has no right to recover is properly dismissed without leave to amend. Grayson v. Mayview
State Hospital, 293 F.3d 103, 106 (3d Cir. 2002).
With this standard in mind, the following is the background to this litigation, as
Evans alleges it.
On April 12, 2016, Evans asked CO Joe Kayes for his inmate ID number so
he could use the inmate telephone system. At the time, CO Kayes was watching the
television in the block’s dayroom. (ECF No. 1, p. 3). Evans “stated you obusly (sic) arnt
(sic) busy.” (Id.) CO Kayes told Evans to “respect him.” (Id.) Evans “said your (sic) not
busy.” (Id.) CO Kayes then stated he would “make [Evans] stay [at the Prison] a living
hell”. (Id.) CO Kayes then handcuffed Evans, punched him in the back of the head and
called for additional officers. (Id.) Even though Evans told “them” he could not breathe, CO
Kayes “swept [his] feet” and “smashed” his face off the Delta block door. (Id.) Evans was
When Evans awoke, he had no feeling in his face and his tongue tingled. He
was in a cell with Josh Kaylor in the “RHU block.” (Id.) Inmate Kaylor then sucker punched
Evans in the head. Unidentified prison staff removed him from the cell and he was “beaten
on Echo Block RHU.” (Id.) The following day, on April 13, 2014, Evans received a
misconduct report. (Id., p. 2).
Plaintiff appears to be making Eighth Amendment claims for excessive force
and a failure to protect. As relief, he seeks compensatory and punitive damages. (Id., p.
Evans’ Failure to State a Claim against Warden Berdanier
In moving to dismiss, Warden Berdanier argues that Evans fails to allege that
he had personal involvement in the events described in the Complaint and that his liability
cannot be based on respondeat superior. (ECF No. 12, pp. 9-11). Citing Monell v. Dep’t of
Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), Warden Berdaneir
also argues that Evans has failed to allege facts to support a claim based on a policy or
custom that led to similar past instances of misconduct. (Id.) Evans did not file a brief in
opposition to Warden Berdanier’s motion to dismiss.
To successfully state a § 1983 claim, a plaintiff must allege: (1) the conduct
complained of was committed by a person acting under color of state law; and (2) the
conduct complained of deprived the plaintiff of rights, privileges, or immunities secured by
the laws or the Constitution of the United States. Rehberg v. Paulk,
132 S.Ct. 1497, 1501, 182 L.Ed.2d 593 (2012); Barkes v. First Corr. Med., Inc., 766 F.3d
307, 316 (3d Cir. 2014).
To establish liability for the deprivation of a constitutional right, an individual
government defendant must have personal involvement in the alleged wrongs; liability
cannot be predicated based on the unconstitutional conduct of their subordinates under a
theory of respondeat superior. Iqbal, 556 U.S. at 676, 129 S.Ct. at 1948; Santiago v.
Warminster Twp., 629 F.3d 121, 130 (3d Cir. 2010). “It is uncontested that a government
official is liable only for his or her own conduct and accordingly must have had some sort of
personal involvement in the alleged unconstitutional conduct.” Argueta v. U.S. I.C.E., 643
F.3d 60, 71-72 (3d Cir. 2011). This personal involvement can be shown where a defendant
personally directs the wrongs, or has actual knowledge of the wrongs and acquiesces in
them. See Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988); A.M. ex rel. J.M.K. v.
Luzerne Cnty. Juvenile Det. Ctr., 372 F.3d 572, 586 (3d Cir. 2004) (noting that “a
supervisor may be personally liable under § 1983 if he or she participated in violating the
plaintiff's rights, directed others to violate them, or, as the person in charge, had knowledge
of and acquiesced in his subordinates' violations”). A defendant “cannot be held
responsible for a constitutional violation which he or she neither participated in nor
approved.” C.H. ex rel. Z.H. v. Oliva, 226 F.3d 198, 201-202 (3d Cir. 2000).
We note that Warden Berdanier’s name only appears in the caption of the
Complaint. His name is not mentioned anywhere in Evans’ statement of his claim. (ECF
No. 1, pp. 2-3). Only CO Kayes is named as having any involvement in the events of April
2016.3 (Id.) The Complaint therefore falls short of the requirements of Fed. R. Civ. P. 8(a)
in regard to Warden Berdanier.
Accordingly, Warden Berdanier will be dismissed due to Evans’ failure to
allege his personal involvement in any alleged constitutional violations. See Fed. R. Civ. P.
8(a); Iqbal, 556 U.S. at 676, 129 S.Ct. at 1948 (noting that, because vicarious liability is
inapplicable in a § 1983 suit, “a plaintiff must plead that each Government-official
defendant, through the official’s own individual actions, has violated the Constitution”).
However, Evans will be granted leave to file an amended complaint as to this defendant.
Leave to Amend
Evans will be granted twenty-one days to file an amended complaint alleging
the personal involvement of Warden Berdanier and any others he claims were involved with
the events of April 2016 at the Prison. If Evans decides to file an amended complaint, he is
advised he must clearly designate on the face of the document that it is the “Amended
Complaint,” it must bear the docket number assigned to this case, and it must be retyped or
legibly rewritten in its entirety, preferably on the court-approved form. 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). Evans is advised that any
CO Kayes filed an Answer to the Complaint on July 18, 2016. See ECF No. 15.
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; see also
W. Run Student Hous. Assocs. v. Huntingdon Nat’l Bank, 712 F.3d 165, 171 (3d Cir. 2013).
Consequently, all causes of action alleged in the original complaint which were not
dismissed with prejudice (i.e., claims against CO Kayes) and are not alleged in the
amended complaint, are waived.
Evans 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. He must also
specify the relief he seeks. Evans’s failure to file an appropriate amended complaint within
the required time will result in the court proceeding exclusively on his Eighth Amendment
claim(s) against CO Kayes. Evans is also cautioned that illegible submissions will be
returned to him without consideration. Finally, Evans is reminded of his obligation to advise
the court of any change of address. His failure to do so may result in the dismissal
of his action.4
An appropriate order follows.
/s/ William W. Caldwell
William W. Caldwell
United States District Judge
Date: April 3, 2017
While Evans notified the court of his transfer from SCP to SCI-Camp Hill, he did not
advise the court of his transfer to SCI-Waymart.
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?