Sears v. McCoy et al

Filing 5

MEMORANDUM (Order to follow as separate docket entry). Signed by Honorable Yvette Kane on 9/12/17. (rw)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
RICHARD SEARS,
Plaintiff
v.
DONTE MCCOY, et al.,
Defendants

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No. 1:17-CV-00869
(Judge Kane)

MEMORANDUM
Presently before the Court is pro se Plaintiff’s Complaint filed pursuant to 42 U.S.C. §
1983 (Doc. No. 1) and motion to proceed in forma pauperis. (Doc. No. 2.) For the following
reasons, the Court will construe Plaintiff’s motion to proceed in forma pauperis as a motion to
proceed without full prepayment of the filing fee and will grant the motion. In addition, pursuant
to this Court’s screening obligations, the Court will dismiss the claims set forth against
Defendants Peters, Eveland, Carpentier, Sciochitana, Baumbach, Luscavage, and Varner
pursuant to the Court’s authority under 28 U.S.C. § 1915(e)(2).
I.

BACKGROUND
On May 16, 2017, Plaintiff Richard Sears, an inmate at the State Correctional Institution

at Albion, Pennsylvania (“SCI-Albion”), filed a pro se civil action pursuant to 42 U.S.C. § 1983,
naming as defendants the following individuals: Correctional Officer Donte McCoy, Lieutenants
A. Peters, J. Eveland and Brian Carpentier, Captain Sciochitana, Deputy Superintendent Facility
Manager E. Baumbach, Deputy Superintendent for Centralized Services Anthony Luscavage,
Superintendent Vincent Mooney, and Chief Grievance Officer Dorina Varner. (Doc. No. 1.)
The allegations set forth in the Complaint stem from alleged incidents that occurred while
Plaintiff was confined at the State Correction Institute at Coal Township (“SCI-Coal
Township”). (Id.)

Plaintiff alleges that after Plaintiff filed grievances against McCoy, McCoy verbally
abused and harassed him by calling him a “rat” in front of other inmates and made a number of
sexually explicit comments to him. (Id.) Plaintiff also alleges that McCoy retaliated against him
for filing grievances by throwing out Plaintiff’s commissary purchase slips, placing a “dark
brown foreign object” in his meal, and stealing and destroying a photograph of Plaintiff’s father.
(Id.) Plaintiff also alleges that Peters, Eveland, Mooney, Varner, Scicchitano, and Carpentier
had an “opportunity to do something meaningful and positive for Mr. Sears and curb or deter any
future forms of such behavior by defendant McCoy[,]” but they “did nothing, causing Mr. Sears
to be further subjected to such behavior [by McCoy].” (Id.) These Defendants appear to be
named in the Complaint on the basis of respondeat superior. Finally, Plaintiff does not make any
allegations against Defendants Baumbach or Luscavage.
In addition to his complaint, Plaintiff has filed a motion to proceed in forma pauperis
(Doc. No. 2). For the reasons set forth below, Plaintiff’s motion for leave to proceed in forma
pauperis will be granted. In addition, pursuant to the screening provisions of 28 U.S.C. §
1915(e)(2), the Court will dismiss Defendants Peters, Eveland, Mooney, Varner, Scicchitano,
and Carpentier, grant Plaintiff leave to amend his complaint as to Defendants Baumbach and
Luscavage, and allow the First Amendment retaliation claim brought against Defendant McCoy
to proceed through screening.
II.

STANDARD OF REVIEW
Under 28 U.S.C. § 1915A, prior to service of process, courts must screen civil complaints

in which prisoners seek redress from governmental entities, officers, or employees. 28 U.S.C. §
1915A(a); James v. Pa. Dep’t of Corr., 230 F. App’x 195, 197 (3d Cir. 2007). If a complaint

fails to state a claim upon which relief can be granted, a court must dismiss the complaint. 28
U.S.C. § 1915A(b)(1); Mitchell v. Dodrill, 696 F. Supp. 2d 454, 471 (M.D. Pa. 2010).
Courts have a similar obligation with respect to actions brought in forma pauperis. See
28 U.S.C. § 1915(e)(2) (“[T]he court shall dismiss the case at any time if the court determines
that . . . the action or appeal . . . fails to state a claim on which relief may be granted . . . .”). In
performing this mandatory screening function, a district court applies the standard governing
motions to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure. Mitchell, 696 F.
Supp. 2d at 471. When ruling on a motion to dismiss under Rule 12(b)(6), the court accepts 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 Ashcroft v. Iqbal, 556 U.S. 662,
679 (2009); In re Ins. Brokerage Antitrust Litig., 618 F.3d 300, 314 (3d Cir. 2010). To avoid
dismissal, all civil complaints must set out “sufficient factual matter” to show that their claims
are facially plausible. See Iqbal, 556 U.S. at 678; Fowler v. UPMC Shadyside, 578 F.3d 203,
210 (3d Cir. 2009). The plausibility standard requires more than a mere possibility that the
defendant is liable for the alleged misconduct: “[W]here 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, the United States Court of Appeals for the Third Circuit has identified the
following steps that a district court must take when reviewing a 12(b)(6) motion: (1) identify the
elements that a plaintiff must plead to state a claim, (2) identify any conclusory allegations
contained in the complaint that are “not entitled” to the assumption of truth, and (3) determine
whether any “well-pleaded 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)
(internal citations and quotation marks omitted). The Third Circuit has specified that 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)).
In the context of pro se prisoner litigation, 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 be dismissed for failure to state a claim only if it appears
beyond a 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).
III.

DISCUSSION
In order to state a viable claim under 42 U.S.C. § 1983, a plaintiff must plead: (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. Groman v. Twp. of Manalapan, 47 F.3d 628, 638 (3d
Cir. 1995); Shaw by Strain v. Strackhouse, 920 F.2d 1135, 1141-42 (3d Cir. 1990). Moreover, in
addressing whether a viable claim has been stated against a defendant, the court must assess
whether the plaintiff has sufficiently alleged that the defendant was personally involved in the act
which the plaintiff claims violated his rights. Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d
Cir. 1988). Liability may not be imposed pursuant to § 1983 under 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 1077, 1082 (3d Cir. 1976)). Instead, “supervisory
personnel are only liable for the § 1983 violations of their subordinates if they knew of,
participated in or acquiesced in such conduct.” Capone, 868 F.2d at 106 n.7.
In this context, supervisory liability exists in only two instances: (1) when the supervisor
“knew of, participated in or acquiesced in” the harmful conduct; and (2) when a supervisor
established and maintained a policy, custom, or practice which directly caused the constitutional
harm. Id.; Santiago, 629 F.3d at 129; A.M. ex rel. J.M.K. v. Luzerne Cnty. Juvenile Ctr., 372
F.3d 572, 586 (3d Cir. 2004). With respect to the second avenue of liability, conclusory, vague,
and speculative allegations of custom, policy, or practice are insufficient. Id.
A. Defendant McCoy: Claims of Verbal Abuse
Plaintiff sets forth several allegations of verbal abuse against Defendant McCoy.
Plaintiff alleges that McCoy made several explicit and sexually abusive remarks to him. (Doc.
No. 1 at ¶¶ 20, 22, 24, 27.) However, “[a]llegations of verbal abuse or threats, unaccompanied
by injury or damage, are not cognizable under § 1983, regardless of whether the inmate is a
pretrial detainee or sentenced prisoner.” Brown v. Hamilton Police Dep't, No. CIV.A. 13-260
MAS, 2013 WL 3189040, at *2 (D.N.J. June 21, 2013) aff’d sub nom. Brown v. Hamilton Twp.
Police Dep’t Mercer Cnty., N.J., 547 F. App'x 96 (3d Cir. 2013); Prisoners’ Legal Ass’n v.
Roberson, 822 F. Supp. 185, 189 (D.N.J. 1993) (“[V]erbal harassment does not give rise to a
constitutional violation enforceable under § 1983.”). In addition, mere threatening language and
gestures of a custodial officer are not constitutional violations. Balliet v. Whitmire, 626 F. Supp.
219, 228-29 (M.D. Pa. 1986) (“Verbal abuse is not a civil rights violation.”), aff'd, 800 F.2d
1130 (3d Cir. 1986). Indeed, allegations of verbal harassment or threats must be accompanied by
some reinforcing act to state a constitutional claim. Here, the Complaint contains no allegations

of verbal abuse accompanied by a reinforcing act. Accordingly, as Plaintiff’s allegations of
verbal harassment by Defendant McCoy do not rise to the level of a viable civil rights claim,
Plaintiff’s verbal harassment claims against McCoy will be dismissed.
B. Defendants Peters, Eveland, Carpentier, Sciochitana, Baumbach, Luscavage,
and Varner: Personal Involvement
With respect to Defendants Peters, Eveland, Carpentier, Sciochitana, and Varner, the
Complaint is devoid of allegations that these Defendants were involved in any conduct that
violated Plaintiff’s First Amendment rights. Plaintiff does not allege the personal involvement of
Defendants Peters, Eveland, Carpentier, Sciochitana, and Varner, who admittedly did not
participate in the retaliatory actions of placing a foreign object in Plaintiff’s meal or stealing and
destroying Plaintiff’s personal property in the context of Plaintiff’s First Amendment retaliation
claim. Indeed, Plaintiff avers only that Defendants were involved with the handling of Plaintiff’s
grievances and appeals. However, the filing of a grievance, participation in “after-the-fact”
review of a grievance, or dissatisfaction with the response to an inmate’s grievance does not
establish the involvement of officials and administrators in any underlying constitutional
deprivation. See Pressley v. Beard, 266 F. App’x. 216, 218 (3d Cir. 2008) (not precedential)
(“The District Court properly dismissed these defendants and any additional defendants who
were sued based on their failure to take corrective action when grievances or investigations were
referred to them.”); Brooks v. Beard, 167 F. App’x. 923, 925 (3d Cir. 2006) (not precedential)
(holding that allegations that prison officials responded inappropriately to inmate's later-filed
grievances do not establish the involvement of those officials and administrators in the
underlying constitutional deprivation); Ramos v. Pa. Dep't of Corr., No. CIV. 4:CV–06–1444,
2006 WL 2129148, at *3 (M.D. Pa. July 27, 2006) (“[C]ontentions that certain correctional
officials violated an inmate's constitutional rights by failing to follow proper procedure or take

corrective action following his submission of an institutional grievance are generally without
merit.”); Wilson v. Horn, 971 F. Supp. 943, 947 (E.D. Pa. 1997) (noting that prison officials’
failure to respond to inmate’s grievance does not state a constitutional claim), aff’d, 142 F.3d
430 (3d Cir. 1998) (table).
As the court stated in Ayers v. Coughlin, 780 F.2d 205, 210 (2d Cir. 1985) (per curiam) a
mere “linkage in the prison chain of command” is not sufficient to demonstrate personal
involvement for purposes of a civil rights action. Permitting supervisory liability where a
defendant, after being informed of the violation through the filing of grievances, reports or
appeals, failed to take action to remedy the alleged wrong is not enough to show that the
defendant has the necessary personal involvement. Rode v. Dellarciprete, 845 F.2d 1195, 1207
(3d Cir. 1998); see also Greenwaldt v. Coughlin, 93 Civ. 6551, 1995 WL 232736, at *4
(S.D.N.Y. Apr. 19, 1995) (“[I]t is well-established that an allegation that an official ignored a
prisoner’s letter of protest and request for an investigation of allegations made therein is
insufficient to hold that official liable for the alleged violations.”); Rivera v. Goord, 119 F. Supp.
2d 327, 344 (S.D.N.Y. 2000) (allegations that inmate wrote to prison officials and was ignored
insufficient to hold those officials liable under § 1983).
Under the standard set out above, Plaintiff fails to establish a claim that Defendants
Peters, Eveland, Carpentier, Sciochitana, and Varner’s conduct violates the First Amendment.
Accordingly, these Defendants will be dismissed from this action.
With regard to Defendants Baumbach and Luscavage, aside from naming these
Defendants in the caption of Plaintiff’s Complaint, the Complaint contains no mention or
allegations against these two Defendants. Accordingly, the Court will dismiss Defendants

Baumbach and Luscavage from this action without prejudice and grant Plaintiff leave to amend
his complaint to include specific allegations, if any, against these two individuals.
IV.

LEAVE TO AMEND
Courts are cautioned that because of the liberal pleading standard, a plaintiff should

generally be granted leave to amend before dismissing a claim that is merely deficient. See
Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002). The federal rules allow for
liberal amendments in light of the “principle that the purpose of pleading is to facilitate a proper
decision on the merits.” Foman v. Davis, 371 U.S. 178, 182 (1962) (citations and internal
quotations omitted). The United States Supreme Court, however, has stated that leave to amend
under Rule 15 may be denied in cases of (1) undue delay, (2) bad faith or dilatory motive, (3)
undue prejudice, or (4) futility of amendment. See id.; see also Arthur v. Maersk, Inc., 434 F.3d
196, 204-05 (3d Cir. 2006) (stating that “leave to amend must generally be granted unless
equitable considerations render it otherwise unjust”); see also Long v. Wilson, 393 F.3d 390, 400
(3d Cir. 2004) (stating “absent undue or substantial prejudice, an amendment should be allowed
under Rule 15(a) unless denial can be grounded in bad faith or dilatory motive, truly undue or
unexplained delay, repeated failure to cure deficiency by amendments previously allowed or
futility of amendment”) (citations and internal quotation marks omitted); Alvin v. Suzuki, 227
F.3d 107, 121 (3d Cir. 2000) (summarizing factors to consider under Rule 15).
Based on the foregoing, the Court finds that Plaintiff should be permitted leave to amend
his Complaint as to Defendants Baumbach and Luscavage. However, while the Court is mindful
that in civil cases, unless an amendment would be inequitable or futile, pro se plaintiffs should be
afforded an opportunity to amend a complaint before it is dismissed, the Court concludes that
such futility exists as to Defendants Peters, Eveland, Carpentier, Sciochitana, and Varner because

Plaintiff’s claim against these Defendants fails to state a constitutional violation under the First
Amendment. See Foman, 371 U.S. at 182; Shane v. Fauver, 213 F.3d 113, 115 (3d Cir. 2000)
(citing In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1434 (3d. Cir. 1997))
(“‘Futility’ means that the complaint, as amended, would fail to state a claim upon which relief
could be granted.”). However, the Court finds that Plaintiff’s First Amendment retaliation claim
against Defendant McCoy survives the initial screening.
Plaintiff will be afforded an opportunity to file an amended complaint adhering to the
standards set forth above. Specifically, should Plaintiff elect to file an amended complaint, he is
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 original complaint or any other documents already
filed. The amended complaint should set forth his claims in short, concise and plain statements
as required by Rule 8 of the Federal Rules of Civil Procedure. Each paragraph should be
numbered. It should specify which actions are alleged as to which defendants and sufficiently
allege personal involvement of the defendant in the acts which he claims violated his rights.
Mere conclusory allegations will not set forth a cognizable claim. Importantly, should Plaintiff
elect to file an amended complaint, he must re-plead every cause of action in the amended
complaint that the Court has found to be adequately pled in the current complaint because the
amended complaint will supercede the original complaint. See Knight v. Wapinsky, No. 12-CV2023, 2013 WL 786339, at *3 (M.D. Pa. March. 1, 2013) (stating that an amended complaint
supercedes the original complaint). Because an amended complaint supersedes the original
pleading, all causes of action alleged in the original complaint that are omitted from the amended
complaint will be deemed waived. Id. (citations omitted).

V.

CONCLUSION
For the foregoing reasons, Plaintiff’s Complaint (Doc. No. 1) will be dismissed in part for

failure to state a claim upon which relief can be granted. The Court will defer service of the
original complaint to give Plaintiff an opportunity to file an amended Complaint within thirty
(30) days from the date of this Memorandum’s corresponding Order. An appropriate Order
follows.