Roque v. Ott et al
MEMORANDUM (Order to follow as separate docket entry).Signed by Honorable Sylvia H. Rambo on 1/8/18. (sc)
IN THE UNITED STATES DISTRICT COURT
FOR THEMIDDLE DISTRICT OF PENNSYLVANIA
CAPTAIN MICHAEL L. OTT,
Presently before the Court for disposition is Defendants’ motion to dismiss
Plaintiff’s complaint. (Doc. No. 15.) For the reasons set forth below, Defendants’
motion will be denied.
On December 19, 2016, Plaintiff Jorge Roque, an inmate at the State
Correctional Institution at Houtzdale, Pennsylvania, filed a complaint pursuant to
42 U.S.C. § 1983 against the Deputy Warden of the Lebanon County Correctional
Facility, Timothy Clements, and several correctional officers employed at that
facility. (Doc. No. 1.) Roque claims that on October 13, 2015, three inmates from
Block 2: Crespo, Pratts, and Martinez, approached him and threatened to harm
him. (Id. at 5.) Plaintiff alleges that he spoke to Correctional Officers Gonzalez
and Derr about this threat and he was subsequently placed in restricted housing for
refusing to lock up in his cell that day. (Id.)
After a disciplinary hearing before Defendants Clements and Ott on
Plaintiff’s refusal to lock up in his cell, Plaintiff served twenty (20) days in the
restricted housing unit. (Id.) After twenty (20) days in the restricted housing unit,
Plaintiff alleges that he was informed by Correctional Officer Ludwig that he was
being reassigned to Block 2 of the facility. (Id.) Plaintiff alleges that he “voiced
his concern for his safety” to officials and that Sergeant Santoni told him that his
options were to return to Block 2 or to be placed back in the restricted housing
unit. (Id.) Plaintiff alleges that having no other choice, and after having told these
prison officials that he was in eminent danger and specifically naming the three
inmates who had threatened him, Plaintiff was placed back on Block 2. (Id. at 5,
7.) Within fifteen (15) minutes of returning to Block 2, Plaintiff alleges that the
three inmates beat him so severely that he was taken to the hospital where he was
diagnosed with a broken jaw, given pain medication, a liquid diet and required
surgery. (Id. at 7.)
Plaintiff alleges that the Defendants failed to protect him from an assault by
these inmates in violation of his rights under the Eighth Amendment. (Id.)
Defendants have filed a motion to dismiss (Doc. No. 15) and brief in support (Doc.
No. 16.) After being directed by this Court, Plaintiff filed an oppositional brief.
(Doc. No. 21.) Defendants filed a reply brief the following day. (Doc. No. 22.)
Accordingly, this matter is ripe for disposition.
When ruling on a motion to dismiss under Rule 12(b)(6), the Court must
accept as true all factual allegations in the complaint and all reasonable inferences
that can be drawn from them, viewed in the light most favorable to the plaintiff.
See In re Ins. Brokerage Antitrust Litig., 618 F.3d 300, 314 (3d Cir. 2010). The
Court’s inquiry is guided by the standards of Bell Atlantic Corp. v. Twombly, 550
U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009). Under Twombly and
Iqbal, pleading requirements have shifted to a “more heightened form of pleading.”
See Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009). To prevent
dismissal, all civil complaints must set out “sufficient factual matter” to show that
the claim is facially plausible. Id. The plausibility standard requires more than a
mere possibility that the defendant is liable for the alleged misconduct. As the
Supreme Court instructed in Iqbal, “where the well-pleaded facts do not permit the
court to infer more than the mere possibility of misconduct, the complaint has
alleged – but it has not ‘show[n]’ – ‘that the pleader is entitled to relief.’” Iqbal,
556 U.S. at 679 (citing Fed. R. Civ. P. 8(a)(2)).
Accordingly, to determine the sufficiency of a complaint under Twombly
and Iqbal, the United States Court of Appeals for the Third Circuit has identified
the following steps a district court must take when determining the sufficiency of a
complaint under Rule 12(b)(6): (1) identify the elements a plaintiff must plead to
state a claim; (2) identify any conclusory allegations contained in the complaint
“not entitled” to the assumption of truth; and (3) determine whether any “wellpleaded factual allegations” contained in the complaint “plausibly give rise to an
entitlement to relief.” See Santiago v. Warminster Twp., 629 F.3d 121, 130 (3d
Cir. 2010) (citation and quotation marks omitted).
In ruling on a Rule 12(b)(6) motion to dismiss for failure to state a claim, “a
court must consider only the complaint, exhibits attached to the complaint, matters
of public record, as well as undisputedly authentic documents if the complainant’s
claims are based upon these documents.” Mayer v. Belichick, 605 F.3d 223, 230
(3d Cir. 2010) (citing Pension Benefit Guar. Corp. v. White Consol. Indus., Inc.,
998 F.2d 1192, 1196 (3d Cir. 1993)). A court may also consider “any ‘matters
incorporated by reference or integral to the claim, items subject to judicial notice,
matters of public record, orders, [and] items appearing in the record of the case.’”
Buck v. Hampton Twp. Sch. Dist., 452 F.3d 256, 260 (3d Cir. 2006) (quoting 5B
Charles A. Wright & Arthur R. Miller, Federal Practice & Procedure § 1357 (3d
In conducting its review of a complaint, the court must be mindful that a
document filed pro se is “to be liberally construed.” Estelle v. Gamble, 429 U.S.
97, 106 (1976). A pro se complaint, “however inartfully pleaded,” must be held to
“less stringent standards than formal pleadings drafted by lawyers” and can only be
dismissed for failure to state a claim if it appears beyond doubt that the plaintiff
can prove no set of facts in support of his claim which would entitle him to relief.
Haines v. Kerner, 404 U.S. 519, 520–21 (1972).
In their motion to dismiss, Defendants provide that Defendants Clements
and Ott should be dismissed because Plaintiff has not alleged any facts suggesting
that these supervisory officials were personally involved in the incident underlying
this action. (Doc. No. 16.) Defendants also argue that Defendants Gonzalez and
Derr should be dismissed for failure to allege any personal involvement. Finally,
with regard to Defendants Ludwig and Santoni, Defendants argue that they should
be dismissed because the alleged facts do not indicate that either of these
Defendants knew of a substantial risk of harm to Plaintiff, and in any event, they
acted reasonably under the circumstances. (Id.)
42 U.S.C. § 1983 provides a cause of action to redress violations of federal
law committed by state officials. See 42 U.S.C. § 1983. Section 1983 is not a
source of substantive rights; rather, it merely provides a remedy for violations of
constitutional rights. See City of Oklahoma City v. Tuttle, 471 U.S. 808, 815
(1985). To establish a claim under 42 U.S.C. § 1983, a plaintiff must demonstrate
that: (1) the conduct complained was committed by a person acting under color of
state law; and (2) the conduct deprived the complainant of rights secured under the
Constitution or federal law. Sameric Corp. of Delaware, Inc. v. City of
Philadelphia, 142 F.3d 582, 590 (3d Cir. 1998).
“The Eighth Amendment’s prohibition against cruel and unusual punishment
protects prisoners against the ‘unnecessary and wanton infliction of pain’ ” and
“impose[s] a duty upon prison officials 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) (citing Farmer v. Brennan, 511 U.S. 825, 832
(1994)); Whitley v. Albers, 475 U.S. 312, 319 (1986). Although “[i]t is not …
every injury suffered by one prisoner at the hands of another that translates into
constitutional liablity 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)). Accordingly, a
“prison official’s deliberate indifference to a substantial risk of serious harm to an
inmate violates the Eighth Amendment.” Farmer, 411 U.S. at 828.
“In order for a plaintiff to prove a constitutional violation in a failure-toprotect case, a claimant must demonstrate that: (1) he is ‘incarcerated under
conditions posing a substantial risk of serious harm;’ and (2) the prison officials
acted with ‘deliberate indifference to his health and safety.’ ” Ogden v. Mifflin
Cnty., 2008 WL 4601931 (M.D. Pa. 2008) (citing Farmer, 511 U.S. at 834).
Deliberate indifference requires that the prison official “knows of and disregards
an excessive risk to inmate health or safety; the official must both be aware of facts
from which the inference could be drawn that a substantial risk of serious harm
exists, and he must also draw the inference.” Farmer, 511 U.S. at 837. “The
knowledge element of deliberate indifference is subjective, not objective
knowledge, meaning that the official must actually be aware of the existence of the
excessive risk; it is not sufficient that the official should have been aware.” BeersCapitol v. Whetzel, 256 F.3d 120, 133 (3d Cir. 2001). Finally, the plaintiff must
show that “the official’s deliberate indifference caused the harm.” Bistrian v. Levi,
696 F.3d 352, 367 (3d Cir. 2010).
Moreover, liability may not be imposed under § 1983 on the traditional
standards of respondeat superior. Capone v. Marinelli, 868 F.2d 102, 106 (3d Cir.
1989) (citing Hampton v. Holmesburg Prison Officials, 546 F.2d 1017, 1082 (3d
Cir. 1976)). In Capone, the court noted “that supervisory personnel are only liable
for the § 1983 violations of their subordinates if they knew of, participated in or
acquiesced in such conduct.” 868 F.2d at 106 n.7. The plaintiff must allege that
the defendant was personally involved in the events or occurrences that underlie
the claim. See Atkinson v. Taylor, 316 F.3d 257, 270-71 (3d Cir. 2003); Rode v.
Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988) (“[a] defendant in a civil rights
action must have personal involvement in the alleged wrongs. . . . [P]ersonal
involvement can be shown through allegations of personal direction or of actual
knowledge and acquiescence. Allegations of participation or actual knowledge and
acquiescence, however, must be made with appropriate particularity.”).
With respect to Defendants Clements and Ott, Plaintiff alleges that he
appeared before them at his disciplinary hearing as a result of his refusal to lock up
in his cell. (Doc. No. 1 at 5.) Plaintiff alleges that at the hearing, he explained to
Defendants Clements and Ott that he refused to lock up because three inmates on
Block 2 threatened him that if he were to remain on Block 2, he would get jumped.
(Id.) Plaintiff further alleges that he explained that Defendants Gonzalez and Derr
denied his request to be removed from Block 2 and that Defendants Gonzalez and
Derr told him that if he refused to lock up, he would be taken to SHU. (Id.)
Plaintiff alleges that Defendants Clements and Ott gave him twenty (20) days in
the SHU but made no mention of whether he would be placed back on Block 2
after he served his sanctioned time for refusing to lock up. (Id.)
Defendants support their motion to dismiss by arguing that Defendant
Clements and Ott are supervisory officials and that the complaint does not allege
any personal involvement of either Defendant. (Doc. No. 16 at 4.) Defendants
further provide that there are no allegations that Defendants Clements and Ott were
ever personally notified of any threats made to Plaintiff, or that they had any
reason to believe that Plaintiff was subject to a particular risk of harm. (Id.)
As to Defendants Gonzalez and Derr, Plaintiff claims that he informed these
Correctional Officers that three inmates approached him and told him that he
needed to “get out the block or get beat down if he stayed.” (Doc. No. 1 at 5.)
Plaintiff alleges that he asked Defendants Gonzalez and Derr to be removed from
the block because he has “enemies there and his life was in danger because his
enemies had just threaten[ed] that they [were] going to jump him if he stayed on
the block.” (Id.) In response, Defendants Gonzalez and Derr allegedly told
Plaintiff that they would not move him and that if he wanted to get off of Block 2,
he could refuse to lock up in his cell assignment and they would take him to SHU.
(Id.) Plaintiff claims that he chose not to lock up and was taken to SHU. (Id.)
Defendants contend that Defendants Gonzalez and Derr acted reasonably by
placing Plaintiff in the restricted housing unit as a result of Plaintiff informing
them that he was threatened by three prisoners. (Doc. No. 16 at 7.) Defendant
Gonzalez and Derr contend that their only interaction with Plaintiff was twenty
days before the date that Plaintiff was assaulted and therefore, they had no
involvement in the actual assault. (Id.)
Regarding Defendants Ludwick and Santoni, Plaintiff alleges that when he
was released from SHU, he inquired with Defendant Ludwick, who was in charge
of processing the release from SHU, as to which block he was assigned. (Doc. No.
1 at 5.) In response, Defendant Ludwick allegedly told Plaintiff that he was going
back to Block 2. (Id.) Plaintiff avers that he “voiced his concern for his safety, the
threat on his life in the hands of his enemies in Block 2,” and again was told by
Defendant Santoni “that it was Block 2 or SHU.” (Id.)
Defendants Ludwig and Santoni contend that Plaintiff failed to sufficiently
allege that either of these Defendants actually knew of Plaintiff’s substantial risk of
harm and that they acted with a deliberate indifference. (Doc. No. 16 at 8.)
Moreover, Defendants argue that because Defendant Santoni provided Plaintiff
with placement options – either remain in SHU or return to Block 2 – that this
shows that Defendants acted reasonably and defeats any claim for failure to
protect. (Id. at 10.)
The Court cannot necessarily agree with Defendants contentions. Accepting
as true Plaintiff’s allegations, Plaintiff has alleged that during his disciplinary
hearing before Defendants Clements and Ott, he explained his refusal to lock up
because of the threat to his life he received from inmates Crespo, Pratts, and
Martinez on Block 2. (Doc. No. 1 at 5.) Plaintiff further alleges that his request to
be removed from Block 2 was denied by Defendants Gonzalez and Derr. (Id.)
Plaintiff has alleged that he was removed from Block 2 by Defendants Gonzalez
and Derr not out of safety concerns, but rather, because of his refusal to lock up.
(Id.) Plaintiff alleges that Defendants Clements and Ott gave him twenty days in
SHU, again, not to protect him from the threat to his health and safety, but rather,
for failing to lock up. (Id.) Plaintiff further alleges that Defendants Clements and
Ott failed to address his concerns of being placed on Block 2 because of the threats
to his life by the three inmates. Similarly, Plaintiff alleges that he informed
Defendants Ludwick and Santoni that he was concerned for his safety because of
the threat he received from the three inmates on Block 2.
At this stage of the litigation, the Court is concerned only with the facts
alleged in the complaint itself. Plaintiff has pled sufficient facts to demonstrate
that each Defendant was aware that three inmates from Block 2 had in fact
threatened Plaintiff and was aware of the risk posed by Plaintiff’s placement on
Block 2. Despite this knowledge, Defendants failed to take any steps that would
decrease the danger to Plaintiff, and this resulted in the attack on Plaintiff by the
very three inmates that threatened Plaintiff. See Farmer, 511 U.S. at 837 (plaintiff
must establish that the prison official acted with deliberate indifference, i.e., that
the prison official knew of and disregarded an excessive risk to his safety).
Moreover, Defendants’ argument that Defendants acted reasonably in response to
Plaintiff’s report that he was threatened by three inmates appears disingenuous at
the current stage. The allegations in the complaint allege that Plaintiff was placed
in SHU not for the safety concerns of Plaintiff, but rather, for Plaintiff’s refusal to
lock up. After Plaintiff served the twenty (20) days in SHU for failing to lock up,
he was placed back on Block 2.
Moreover, while the Court is cognizant that the “failure of a prison official
to act favorably on an inmate’s grievance is not itself a constitutional violation,”
Rauso v. Vaughn, Civ. No. 96-6977, 200 WL 873285, at *16 (E.D. Pa., June 26,
2000), Plaintiff’s allegations against Defendants Clements and Ott are concentrated
not on an “after-the-fact” review of a grievance Plaintiff filed, but rather,
allegations that Plaintiff informed both Defendants in person of the threat to his
safety and health, that both Defendants were aware of the risk of harm to Plaintiff
but disregarded the risk that the three inmates on Block 2 posed to Plaintiff.1
Accepting the allegations as true and drawing all reasonable inferences in
favor of Plaintiff, the Court finds that Plaintiff has stated a plausible claim that
Defendants violated their constitutional duty to protect him from inmate violence.
Accordingly, the motion to dismiss the failure to protect claim against Defendants
will be denied. See Bistrian, 696 F.3d at 368-71 (concluding that plaintiff stated
plausible failure to protect claim where he alleged, inter alia, that he advised
Additionally, Defendants’ citation to Beaton v. Tennis, 460 F. App’x 111, at *2 (3d Cir. 2012)
for the proposition that prison officials cannot be liable for failure to protect based upon a threat
that is too attenuated from the incident, is distinguishable from the case at bar. In Beaton, the
Plaintiff was assaulted almost two months after he first alleged he was threatened by an inmate.
Id. at *5. Here, Plaintiff was severely assaulted within twenty days of informing Defendants of
the threats and within fifteen minutes of being placed back on Block 2.
prison officials that he had been threatened by a violent inmate who later attacked
For the foregoing reasons, Defendants’ motion to dismiss will be denied.
An appropriate order follows.
s/Sylvia H. Rambo
SYLVIA H. RAMBO
United States District Judge
Dated: January 8, 2018
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