Rochester v. Doe et al

Filing 10

MEMORANDUM re Complaint 1 , Mtns to appoint counsel 3 and for Leave to Proceed ifp 8 filed by Faheem Rochester. (Order to follow as separate docket entry)Signed by Honorable Sylvia H. Rambo on 9/5/17. (ma)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT COURT OF PENNSYLVANIA
__________________________________
FAHEEM ROCHESTER,
:
:
Plaintiff,
:
:
v.
:
:
WARDEN OF SCI BENNER, et al. :
:
:
Defendants.
:
______________________________

No. 1:17-CV-01220
(Judge Rambo)

MEMORANDUM
Currently before the Court is a civil action filed by pro se Plaintiff, Faheem
Rochester, pursuant to 42 U.S.C. § 1983. (Doc. No. 1.) Plaintiff has also filed a
motion to appoint counsel (Doc. No. 3) and a motion for leave to proceed in forma
pauperis (Doc. No. 8.) Pursuant to the Prison Litigation Reform Act of 1995
(“PLRA”), the Court performs the following screening of the complaint prior to
service of process.
I.

Background
Plaintiff, an inmate currently incarcerated at the State Correctional Institution

Greene, Waynesburg, Pennsylvania (“SCI-Greene”), initiated this civil action by
filing a complaint on July 12, 2017, naming as Defendants the Warden of SCI
Benner, Correctional Officer Lieutenant Justice, Correctional Officer Lieutenant
Luciano, and Doctor Preston. (Doc. No. 1.) Plaintiff alleges that while held in a
psychiatric observation cell at SCI-Benner, he was hand cuffed to his bed by

Defendants Justice and Luciano because he had a lighter in his rectum. (Id. at 2.)
Plaintiff alleges that he was told by both Defendants that in order to have the hand
cuffs removed, he had to have a bowel movement so they could retrieve the lighter.
(Id.) However, Defendant Luciano then came to his cell and informed Plaintiff that
Doctor Preston was going to come and physically remove the lighter from his rectum.
(Id.) Plaintiff provides that he did not consent to Dr. Preston removing the lighter
physically, but rather, would give Defendants the lighter once he had a bowel
movement. (Id. at 2, 3.) Plaintiff alleges that against his will and despite him telling
Defendants to stop, Defendant Luciano as well as nine other unidentified correctional
officers held him down on his bed while Dr. Preston physical went into his rectum to
retrieve the lighter. (Id. at 3.) Plaintiff alleges that he was bleeding as a result of the
incident and was refused medical treatment. (Id.)
Plaintiff has alleged a violation of the Eighth Amendment’s prohibition on
cruel and unusual punishment as well as an Eighth Amendment deliberate
indifference claim against Defendants.
II.

Standard of Review
Under 28 U.S.C. § 1915A, the Court is obligated, prior to service of process,

to screen a civil complaint in which a prisoner is seeking redress from a
governmental entity or officer or employee of a governmental entity. 28 U.S.C. §
1915A(a); James v. Pa. Dep’t of Corr., 230 F. App’x 195, 197 (3d Cir. 2007). The

Court must dismiss the complaint if it fails to state a claim upon which relief can
be granted. 28 U.S.C. § 1915A(b)(1); Mitchell v. Dodrill, 696 F. Supp. 2d 454,
471 (M.D. Pa. 2010). The Court has a similar obligation with respect to actions
brought in forma pauperis. See 28 U.S.C. § 1915(e)(2). In performing this
mandatory screening function, a district court applies the same standard applied to
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 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
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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,
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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
Ed. 2004)).
In conducting its screening 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).
III.

Section 1983 Standard
In order to state a viable § 1983 claim, the plaintiff 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 Cnty. Corr. Facility, 318 F.3d 575, 580-81 (3d Cir. 2003).
Further, § 1983 is not a source of substantive rights. Rather, it is a means to

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redress violations of federal law by state actors. Gonzaga Univ. v. Doe, 536 U.S.
273, 284-85 (2002).
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 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 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.
There are only two avenues for supervisory liability: (1) if the supervisor
“knew of, participated in or acquiesced in” the harmful conduct; and (2) if 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). As it concerns
the second avenue of liability, conclusory, vague, and speculative allegations of
custom, policy, or practice are insufficient. Id.
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IV.

Discussion
A. Individual and Official Capacities
Plaintiff brings this suit against Defendants in both their individual and

official capacities and seeks declaratory and injunctive relief, as well as relief in
the form of compensatory and punitive damages. A state official sued in his or her
official capacity is not a “person” for purposes of § 1983 where the relief sought is
monetary damages because the Supreme Court has not construed § 1983 as an
abrogation of the states’ Eleventh Amendment immunity. Will v. Michigan Dep’t
of State Police, 491 U.S. 58, 63-71 (1989). Will clearly precludes actions for
damages against state officials acting in their official capacities. However, the
state’s immunity is not shared by state officers to the extent that the suit seeks
prospective injunctive or declaratory relief or seeks damages from the officers in
their individual capacities. Ex Parte Young, 209 U.S. 123 (1908); see Verizon
Md., Inc. v. Pub. Serv. Comm’n of Md., 535 U.S. 635 (2002). Consequently, to
the extent Plaintiff seeks damages against the Defendants in their official capacities
under § 1983 for compensatory or punitive damages, those claims will be
dismissed.

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B. Respondeat Superior
While Plaintiff names the Warden of SCI-Benner as a Defendant, the
complaint contains no specific allegations against the Warden. Local government
units and supervisors typically are not liable under § 1983 solely on a theory of
respondeat superior. See City of Oklahoma City v. Tuttle, 471 U.S. 808, 824 n.8
(1985); Monell v. Dep’t of Soc. Servs. Of City of N.Y., 436 U.S. 658, 690-91
(1978). “A defendant in a civil rights action must have personal involvement in
the alleged wrongs, liability cannot be predicated solely on the operation of
respondeat superior. Rode v. Dellarciprete, 845 F.2d 1195, 1207-08 (3d Cir.
1988); see also Sutton v. Rasheed, 323 F.3d 236, 249 (3d Cir. 2003) (citing Rode.)
Personal involvement can be shown through allegations of personal direction or of
actual knowledge and acquiescence. Rode, 845 F.2d at 1207. As set forth in
Rode,
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
knowledge and acquiescence, however, must be made with
appropriate particularity.
Id. at 1207.
With respect to the Warden, a review of the complaint confirms that other
than being listed as a Defendant, there are no specific assertions that the Warden
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had any personal involvement in the purported violations of Plaintiff’s rights.
Accordingly, the Court will dismiss the Warden from this action without prejudice
and grant Plaintiff leave to amend his complaint to include specific allegations, if
any, against the Warden.
C. Request for Appointment of Counsel
Along with his complaint, Plaintiff requests appointment of counsel. (Doc.
No. 3.) Although prisoners have no constitutional or statutory rights to
appointment of counsel in a civil case, a court does have broad discretionary power
to appoint counsel under 28 U.S.C. § 1915(d). Tabron v. Grace, 6 F.3d 147, 153,
155-57 (3d Cir. 1993) (setting forth non-exhaustive list of factors to be considered
in ruling on motion for appointment of counsel, including the merits of the claims
and the difficulty of the legal issues), cert. denied, 114 S.Ct. 1306 (1994); Ray v.
Robinson, 640 F.2d 474, 477 (3d Cir. 1981). The Court of Appeals for the Third
Circuit has stated, however, that appointment of counsel for an indigent litigant
should only be made "upon a showing of special circumstances indicating the
likelihood of substantial prejudice to him resulting, for example, from his probable
inability without such assistance to present the facts and legal issues to the court in
a complex but arguably meritorious case." Smith-Bey v. Petsock, 741 F.2d 22, 26
(3d Cir. 1984). But no part of the discussion in Smith-Bey of circumstances
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warranting appointment of counsel should be interpreted to mean that
"appointment is permissible only in exceptional circumstances and that, in the
absence of such circumstances, the court has no discretion to appoint counsel."
Tabron, 6 F.3d at 155.
Plaintiff’s motion fails to set forth sufficient special circumstances or factors
warranting appointment of counsel. See Tabron v. Grace, supra. The complaint
and other documents filed by Plaintiff to date reveal that he is capable of
presenting his claims. Furthermore, this Court's liberal construction of pro se
pleadings, e.g., Haines v. Kerner, 404 U.S. 519, 520 (1972), coupled with
Plaintiff’s apparent ability to litigate this action pro se, militate against the
appointment of counsel. Moreover, the Court cannot say, at least at this point, that
Plaintiff will suffer substantial prejudice if he is forced to prosecute this case on his
own.
In the event that future proceedings demonstrate the need for counsel, the
matter may be reconsidered by the court either sua sponte or upon a motion
properly filed by Plaintiff.
V.

Leave to Amend
The Court is mindful that in civil cases pro se plaintiffs often should be

afforded an opportunity to amend a complaint before the complaint is dismissed in
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its entirety unless an amendment would be inequitable or futile. Grayson v.
Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002). Based on the foregoing,
the Court will grant Plaintiff leave to amend his complaint as to the claims set forth
against the Warden of SCI-Benner. 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. 12CV-2023, 2013 WL 786339, at *3 (M.D. Pa. March. 1, 2013) (stating that an
amended complaint supercedes the original complaint). Because an amended
complaint supercedes the original pleading, all causes of action alleged in the
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original complaint that are omitted from the amended complaint will be deemed
waived. Id. (citations omitted).
VI.

Conclusion
For the foregoing reasons, Plaintiff’s motion to proceed in forma pauperis

(Doc. No. 8) will be granted, his motion to appoint counsel (Doc. No. 3) will be
denied without prejudice, and his 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.

s/Sylvia H. Rambo
SYLVIA H. RAMBO
United States District Judge
Dated: September 5, 2017

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