Williams v. Beard et al

Filing 197

MEMORANDUM Since a review of the Amended Complaint shows that Plaintiff has not set forth any averments which could support a claim that either Anascavage or Davis had personal involvement in any constitutional misconduct and in light of Plaintiffs c oncessions that he has no facts whatsoever which could support a claim that they engaged in or acquiesced in the purported food tampering, entry of dismissal in favor of those two Defendants with respect to the wholly speculative claims asserted against them is warranted. An appropriate Order will enter.Signed by Honorable Richard P. Conaboy on 10/13/12. (cc, )

IN THE UNITED STATES DISTRICT COURT
FOR THE
MIDDLE DISTRICT OF PENNSYLVANIA

LA-QUN RASHEED WILLIAMS,

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Plaintiff
v.
JEFFREY BEARD, ET AL.,
Defendants

CIVIL NO. 3:CV-10-979
(Judge Conaboy)

_________________________________________________________________
MEMORANDUM
Background
La-qun Rasheed Williams (Plaintiff), an inmate presently
confined at the State Correctional Institution, Coal Township,
Pennsylvania (SCI-Coal Twp.), filed this pro se civil rights action
pursuant to 42 U.S.C. § 1983.

By Order dated July 18, 2011,

Plaintiff’s identification of John Doe # 6 as being Stewardess
Robert Anascavage and of John Doe # 7 as being Stewardess Jacob
Davis was accepted by the Court.

See Doc. 107.

Davis and

Anascavage are both employed in the food services department at
SCI-Coal Twp.
Defendants Michael Weisner, M.D. and Physician’s Assistant
(PA) Brian Davis’ motion to dismiss was granted by Memorandum and
Order dated August 29, 2001.

See Doc. 119.

A Memorandum and Order

issued on September 30, 2011 partially granted a motion seeking

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partial dismissal1 which was filed by the Commonwealth Defendants
with the exception of Davis and Anascavage.

Specifically,

dismissal was granted in favor of the moving Commonwealth
Defendants with respect to: (1) Williams’ damage claims for
monetary damages brought against the Commonwealth Defendants in
their respective official capacities; (2) the allegations of being
subjected to verbal harassment, attempted bribery, and harassment;
(3) Plaintiff’s claims of being the target of a conspiracy; (4) all
claims against Defendants Barnacle, Beard, Ellett, Michael Miller,
Novitsky, Shedleski, and Varano due to lack of personal
involvement; (5) the claims of deliberate indifference by Defendant
McCarty;(6) Williams’ claims relating to the issuance of four
misconduct charges by Lieutenants Fago, Fetterholf, and Knarr as
well as any due process claims against Hearing Examiner Kerns-Barr;
(7) the denial of telephone privileges on November 19, 2009; (8)
the cell search claims; (9) the claims of mail interference with
regards to the the yellow envelope, Mint Green and motorcyclist
magazine related mailings; and (10) the contentions of retaliation,
food deprivation, and being served food loaf.
As a result of the September 30, 2011 Memorandum and Order,
the only surviving allegations against those Commonwealth
Defendants are the claims that: (1) razor blade pieces were planted
in Plaintiff’s food and that (2) incoming mail from Williams’
family was not delivered.

Presently pending is a motion to dismiss

1. The motion sought dismissal of all claims except the
allegations that Correctional Officers Kitchen and Fetterolf
planted razor blade pieces in Plaintiff’s food
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(Doc. 109) filed by Defendants Davis and Anascavage which has been
briefed and is ripe for consideration.
Plaintiff’s Amended Complaint alleges that he was subjected
to a “campaign of harassment” in retaliation for his initiation of
institutional grievances.

Doc. 15, p. 1.

It describes Defendants

Davis and Anascavage as being employed as “kitchen stewardess” and
being responsible for “the preparation of food” at SCI-Coal Twp.
Id. at ¶ 28.
Williams states that on January 21, 2010 he was housed in
the SCI-Coal Twp. Restricted Housing Unit (RHU).

During lunchtime

on said date, he was delivered a food tray by Correctional Officers
Kitchen and Fetterolf.

Plaintiff alleges that as he “began to eat

his sandwich on the third bite he felt something sharp.”
125.

Id. at ¶

According to the Amended Complaint, a piece of razor blade

which was put in Plaintiff’s sandwich had “sliced his tongue open.”
Id.

The Amended Complaint asserts that Anascavage was present in

the mess hall during lunch on January 21, 2010 and was observing
the preparation of food being put on the RHU trays and escorting
those trays to Plaintiff’s housing unit.

See id. at ¶ 137.

Plaintiff additionally alleges that he found “another razor
blade in his contamined [sic] food which was delivered to him in
the RHU on January 26, 2010.

See id. at ¶ 151.

Williams generally

contends that Defendant Davis was the kitchen stewardess on duty
during the relevant time period on January 26, 2010 and observed
the preparation of the RHU food trays and then escorted said trays
to Plaintiff’s housing unit.

See id. at ¶ 153.

There are no

additional claims asserted against either Davis or Anascavage in
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the Amended Complaint.

Williams seeks injunctive and declaratory

relief as well as punitive and compensatory damages.
Discussion
Defendants Davis and Anascavage seek dismissal of Williams’
action on the grounds that there are no material factual
allegations which are sufficient to show personal involvement in
the constitutional misconduct attributed to them.

See Doc. 110, p.

4.
Plaintiff has filed a motion (Doc. 112) requesting that
Defendants Davis and Anascavage’s motion to dismiss be denied and a
supporting brief (Doc. 113).
Standard of Review
Federal Rule of Civil Procedure 12(b)(6) provides for the
dismissal of complaints that fail to state a claim upon which
relief can be granted.

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 therefrom, and view them in the light most favorable to
the plaintiff.”

Kanter v. Barella, 489 F.3d 170, 177 (3d Cir.

2007)(quoting Evancho v. Fisher, 423 F.3d 347, 350 (3d Cir. 2005)).
A plaintiff must present facts that, if true, demonstrate a
plausible right to relief.

See Fed. R. Civ. P. 8(a)(stating that

the complaint should include “a short and plain statement of the
claim showing that the pleader is entitled to relief”); Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555 (2007).

This requirement

“calls for enough facts to raise a reasonable expectation that
discovery will reveal evidence of” the necessary elements of the
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plaintiff’s cause of action.

Id. at 556.

A complaint must contain

“more than an unadorned, the-defendant-unlawfully-harmed-me
accusation.” Ashcroft v. Iqbal, ___ U.S. ____ , 129 S.Ct 1937, 1949
(2009). “Threadbare recitals of the elements of a cause of action,
supported by mere conclusory statements do not suffice.” Iqbal, 129
S.Ct at 1949.

Legal conclusions must be supported by factual

allegations and the complaint must state a plausible claim for
relief.

See id. at 1950.
“Factual allegations must be enough to raise a right to

relief above the speculative level, on the assumption that all the
allegations in the complaint are true (even if doubtful in fact).”
Twombly, at 555.

The reviewing court must determine whether the

complaint “contain[s] either direct or inferential allegations
respecting all the material elements necessary to sustain recovery
under some viable legal theory.”

Id. at 562; see also Phillips v.

County of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008)(in order to
survive a motion to dismiss, a plaintiff must allege in his
complaint “enough facts to raise a reasonable expectation that
discovery will reveal evidence of the necessary element[s]” of a
particular cause of action).

Additionally, pro se pleadings are to

be construed liberally, Haines v. Kerner, 404 U.S. 519, 520 (1972).
A plaintiff, in order to state an actionable civil rights
claim, must plead two essential elements:

(1) that the conduct

complained of was committed by a person acting under color of 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.

See Groman v. Township of Manalapan, 47 F.3d 628,
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638 (3d Cir. 1995); Shaw by Strain v. Strackhouse, 920 F.2d 1135,
1141-42 (3d Cir. 1990).
Furthermore, federal civil rights claims brought under §
1983 cannot be premised on a theory of respondeat superior.
v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988).

Rode

Rather, each

named defendant must be shown, via the complaint's allegations, to
have been personally involved in the events or occurrences which
underlie a claim.

See Rizzo v. Goode, 423 U.S. 362 (1976); Hampton

v. Holmesburg Prison Officials, 546 F.2d 1077 (3d Cir. 1976).

As

explained 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 actual knowledge and
acquiescence, however, must be made with
appropriate particularity.
Rode, 845 F.2d at 1207.
Plaintiff’s opposing brief acknowledges that he was
delivered food trays by Correctional Officers Kitchen and Fetterolf
on both January 21, 2010 and January 26, 2010 which contained
pieces of razor blade.

Doc. 113, p. 2.

His brief adds that while

he believes that Defendant Sergeant Peters conspired with Fetterolf
and Kitchen in those alleged acts of misconduct he is “trying to
establish” whether Davis and Anascavage were also part of a
purported conspiracy to place razor blade pieces in his food or
whether Fetterolf, Kitchen, and Peters were acting alone.
at p. 3

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See id.

It is initially noted that this Court’s Memorandum and Order
of September 30, 2011 concluded that it was “clear that Plaintiff
has failed to state a viable conspiracy claim against any
Commonwealth Defendant.”

Doc. 124, p. 12.

Second, there are no factual allegations that anyone saw
either of the Moving Defendants engage in any alleged misconduct
directed towards the Plaintiff.

There are no averments that either

Moving Defendant acknowledged any participation, knowledge or
acquiescence in the purported food tampering.

Based upon a review

of the Amended Complaint there are also no contentions that Davis
or Anascavage had any prior contact with Plaintiff or more
importantly, any motivation to subject him to the alleged physical
abuse.

Williams himself acknowledges that he has no evidence that

either Davis or Anascavage was involved in the food tampering.

The

Plaintiff asserts only that they had opportunity to place razor
blade pieces in his food is naming them as Defendants solely in an
effort to establish whether they had any involvement.

Such wholly

speculative contentions simply do not satisfy the pleading
requirements of Iqbal and Twombly.

This determination is furthered

bolstered by the fact that the Amended Complaint has alleged that
it was Defendants Kitchen and Fetterolf who actually delivered the
food trays and were responsible for the placement of razor blade
pieces in his food on two separate dates.
Since a review of the Amended Complaint shows that Plaintiff
has not set forth any averments which could support a claim that
either Anascavage or Davis had personal involvement in any
constitutional misconduct and in light of Plaintiff’s concessions
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that he has no facts whatsoever which could support a claim that
they engaged in or acquiesced in the purported food tampering,
entry of dismissal in favor of those two Defendants with respect to
the wholly speculative claims asserted against them is warranted.2
An appropriate Order will enter.

S/Richard P. Conaboy
RICHARD P. CONABOY
United States District Judge

DATED: FEBRUARY 13, 2012

2. In the event that Plaintiff can present any facts which could
support a claim that either Davis or Anascavage engaged in any
constitutional misconduct with regards to the two alleged incidents
of food tampering, he may file a motion for reconsideration of this
ruling within fourteen (14) days of the date of this Memorandum and
Order.
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