Sanders v. County of Bradford et al

Filing 76

MEMORANDUM - (order to follow).Signed by Honorable Malachy E Mannion on 6/4/13. (Attachments: # 1 Unpublished Opinion(s), # 2 Unpublished Opinion(s), # 3 Unpublished Opinion(s))(bs)

Keys v. Carroll, Not Reported in F.Supp.2d (2011)

2011 WL 1152135
Only the Westlaw citation is currently available.
United States District Court,
M.D. Pennsylvania.
Carrington KEYS, Plaintiff,
v.
Jacqueline CARROLL, et al., Defendants.
Civil Action No. 3:10–CV–
1570. | March 28, 2011.
Attorneys and Law Firms
Carrington Alan Keys, Frackville, PA, pro se.
Deborah H. Simon, Elliott, Greenleaf & Siedzikowski, Blue
Bell, PA, John G. Dean, Elliott Greenleaf & Dean, Wilkes–
Barre, PA, Raymond W. Dorian, Office Of Chief Counsel,
Mechanicsburg, PA, for Defendants.
Opinion
MEMORANDUM
A. RICHARD CAPUTO, District Judge.
*1 Presently before the Court is the report and
recommendation of Magistrate Judge William T. Prince (Doc.
21.) The report recommends that the defendants' motions to
dismiss (Docs.2, 8) be granted. For the reasons explained
below, the report will be adopted in part and rejected in part.

I. Background
Carrington Keys is an inmate at a State Correctional
Institution in Pennsylvania (SCI–Dallas). He filed a
complaint in the Court of Common Pleas against various
prison officials pursuant to 42 U.S.C. § 1983. The defendants
removed the action to federal court. They moved to dismiss.
(Doc. 2, 8.) The motions to dismiss were referred to a
magistrate judge for a report and recommendation.
The magistrate judge filed a report recommending that the
motions to dismiss be granted because the plaintiff fails to
allege personal involvement by the named defendants and
because he failed to exhaust his administrative remedies.

The plaintiff filed his objections. (Doc. 24.) The defendants
have responded, (Doc. 25), and the motions are fully briefed
and ripe for review.

II. Discussion
A. Legal Standard for Reviewing a Report and
Recommendation
Where objections to the magistrate judge's report are filed,
the court must conduct a de novo review of the contested
portions of the report, Sample v. Diecks, 885 F.2d 1099,
1106 n. 3 (3d Cir.1989) (citing 28 U.S.C. § 636(b)(1)(c)),
provided the objections are both timely and specific, Goney
v. Clark, 749 F.2d 5, 6–7 (3d Cir.1984). In making its de
novo review, the court may accept, reject, or modify, in
whole or in part, the factual findings or legal conclusions of
the magistrate judge. See 28 U.S.C. § 636(b)(1); Owens v.
Beard, 829 F.Supp. 736, 738 (M.D.Pa.1993). Although the
review is de novo, the statute permits the court to rely on
the recommendations of the magistrate judge to the extent it
deems proper. See United States v. Raddatz, 447 U.S. 667,
675–76, 100 S.Ct. 2406, 65 L.Ed.2d 424 (1980); Goney, 749
F.2d at 7; Ball v. United States Parole Comm'n, 849 F.Supp.
328, 330 (M.D.Pa.1994). Uncontested portions of the report
may be reviewed at a standard determined by the district
court. See Thomas v. Arn, 474 U.S. 140, 154, 106 S.Ct. 466,
88 L.Ed.2d 435 (1985); Goney, 749 F.2d at 7. At the very
least, the court should review uncontested portions for clear
error or manifest injustice. See, e.g., Cruz v. Chater, 990
F.Supp. 375, 376–77 (M.D.Pa.1998).
Here, the court reviews the portions of the report and
recommendation which Banks objects to de novo. The
remainder of the report and recommendation is reviewed for
clear error.

B. Legal Standard on a Motion to Dismiss Under 12(b)
(6)
Federal Rule of Civil Procedure 12(b)(6) provides for the
dismissal of a complaint, in whole or in part, for failure to
state a claim upon which relief can be granted. In deciding
a 12(b)(6) motion, courts “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 may be entitled to
relief.” Phillips v. County of Allegheny, 515 F.3d 224, 233
(3d Cir.2008). Dismissal is appropriate only if a plaintiff

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Keys v. Carroll, Not Reported in F.Supp.2d (2011)

has failed to plead “enough facts to state a claim to relief
that is plausible on its face,” Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007),
which is to say “enough facts to raise a reasonable expectation
that discovery will reveal evidence of illegal[ity].” In re Ins.
Brokerage Antitrust Litig., 618 F.3d 300, 319 (3d Cir.2010)
(quoting Arista Records, LLC v. Doe 3, 604 F.3d 110, 120 (2d
Cir.2010) (alteration in Arista Records )).
*2 “A claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.” Ashcroft v. Iqbal, –––U.S. ––––, ––––, 129 S.Ct.
1937, 1949, 173 L.Ed.2d 868 (2009) (citing Twombly, 550
U.S. at 556). “Threadbare recitals of the elements of a cause
of action, supported by mere conclusory statements, do not
suffice.” Id. “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 ‘shown’—‘that the
pleader is entitled to relief.’ ” Id. at 1950.
In line with the pleading standards established by the Supreme
Court's decisions in Twombly and Iqbal, the Third Circuit
has instructed district courts to conduct a two-part analysis
when disposing of a motion to dismiss for failure to state a
claim. See Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d
Cir.2009). This analysis proceeds as follows:
First, the factual and legal elements
of a claim should be separated. The
District Court must accept all of
the complaint's well-pleaded facts as
true, but may disregard any legal
conclusions. Second, a District Court
must then determine whether the facts
alleged in the complaint are sufficient
to show that the plaintiff has a
“plausible claim for relief.” In other
words, a complaint must do more
than allege the plaintiff's entitlement to
relief. A complaint has to “show” such
an entitlement with its facts.
Id. at 210–11 (internal citations omitted).
Courts must construe complaints “so as to do substantial
justice.” Fed.R.Civ.P. 8(e). Courts liberally construe pro
se pleadings and “apply the applicable law, irrespective of
whether the pro se litigant has mentioned it by name.” Dluhos

v. Strasberg, 321 F.3d 365, 369 (3d Cir.2003) (citing Higgins
v. Beyer, 293 F.3d 683, 688 (3d Cir.2002)).

C. Objections as to Supervisory Officials
The magistrate judge concludes that the plainitiff failed
to allege personal involvement by the defendants who
are prison supervisory officials. As the magistrate judge
correctly notes, there is no respondeat superior liability
under § 1983. See Spruill v. Gillis, 372 F.2d 218, 236 (3d
Cir.2004). The magistrate judge understands the complaint
to allege mere vicarious liability. The magistrate judge
regards the complaint as failing to allege that the defendants
were involved in, knew of, or acquiesced to the plaintiff's
constitutional harms. Thus, the magistrate judge recommends
dismissal.
The plaintiff objects to this portion of the report and argues
that he properly alleged that the defendants implemented
policies leading to his constitutional injuries.
It is true that a § 1983 defendant “must have personal
involvement in the alleged wrongs to be liable,” Sutton v.
Rasheed, 323 F.3d 236, 249 (3d Cir.2003), and “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 (3d Cir.2000). However,
“[i]ndividual defendants who are policymakers may be liable
under § 1983 if it is shown that such defendants, ‘with
deliberate indifference to the consequences, established and
maintained a policy, practice or custom which directly caused
[the] constitutional harm.’ ” A.M. ex rel. J.M.K. v. Luzerne
County Juvenile Detention Center, 372 F.3d 572, 586 (3d
Cir.2004) (citing Stoneking v. Bradford Area Sch. Dist., 882
F.2d 720, 725 (3d Cir.1989)).
*3 The complaint alleges that defendants Beard,
Klopotosky, Walsh, Mooney and Zakkeranskas had the
authority and ability to establish prison policy. (¶ 28.)
The complaint further alleges that these defendants were
deliberately indifferent to the plaintiff's constitutional rights,
despite “knowing that unconstitutional policies, practices,
and customs” were in place. (¶ 29.) These alleged policies
included beating inmates who filed grievances. (¶ 26.) The
plaintiff further alleges that these policies and customs led to
his harms. (¶ 26.) These allegations are sufficient to withstand
a motion to dismiss, and the report's recommendation that the
claims against these defendants be dismissed will be rejected.

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Keys v. Carroll, Not Reported in F.Supp.2d (2011)

D. Grievances
The plaintiff objects to the portion of the report concluding
that dismissal should be granted to all defendants based on
his alleged failure to exhaust his administrative remedies.
The plaintiff argues that failure to exhaust was only raised
by Defendant Carroll, and that it is inappropriate to grant
dismissal sua sponte on the basis of an affirmative defense
that the other defendants failed to raise.
The Court agrees. Failure to exhaust administrative remedies
is an affirmative defense, which must be pleaded and proven
by the defendants. Jones v. Bock, 549 U.S. 199, 211–212, 127
S.Ct. 910, 166 L.Ed.2d 798 (2007). Here, the only defendant
who raised the affirmative defense was Defendant Carroll.
Thus, dismissal as against the other defendants would be
improper.

E. Official Capacity
The supervisory officials move for dismissal to the extent that
the plaintiff sues them in their official capacity.
The Eleventh Amendment, which provides that the federal
judicial power “shall not be construed to extend to any suit in
law or equity” brought by an individual against a state, gives
immunity to state governments from suit in federal court.
Individual state employees sued in their official capacities
are entitled to Eleventh Amendment immunity because
“official-capacity suits generally represent only another way
of pleading an action” against the state. Betts v. New Castle
Youth Dev. Ctr., 621 F.3d 249, 254 (3d Cir.2010) (quoting
Hafer v. Melo, 502 U.S. 21, 25, 112 S.Ct. 358, 116 L.Ed.2d
301 (1991)).
Courts construe pleadings “so as to do justice.” Fed.R.Civ.P.
8(e). See Hindes v. FDIC, 137 F.3d 148, 157 (3d Cir.1998)
(construing claim identified in the complaint as against an
official in his individual capacity as asserting a claim against
him in his official capacity); Biggs v. Meadows, 66 F.3d
56, 60–61 (4th Cir.1995) (holding that a plaintiff need not
expressly plead the capacity in which he is suing a defendant
under § 1983, but the court must examine the nature of
the plaintiff's claims, the relief sought, and the course of
proceedings to determine whether a state official is being sued
in a personal capacity).
Here, the plaintiff seeks money damages and equitable relief.
To the extent that the plaintiff seeks money damages, the

Court assumes the officials are being sued in their individual
capacities. Dismissal is not necessary.

F. Verbal Harassment
*4 The defendants move to dismiss the complaint “to the
extent that [the plaintiff] is suing the Corrections Defendants
for mere verbal threats and harassment.” Nowhere in the
complaint does the plaintiff claim verbal harassment as a
cause of action; indeed his claims are all for constitutional
violations.
Additionally, the defendants argue that the plaintiff's
allegations with respect to Defendant Angelope are
inadequate to state a claim for relief. The Court disagrees.
Defendant Angelope is alleged to have warned the plaintiff:
You should not be filing complaints
with Human Rights Coalition. I advise
you to mind your business because
this will make you a target[;] these
are some serious allegations being
made ... that is [sic ] going to cause you
trouble if you don't sign off on these
complaints.
(Complaint at ¶ 10.) While “mere threats” do not rise to
the level of a constitutional violation, “[g]overnment actions,
which standing alone do not violate the Constitution, may
nonetheless be constitutional torts if motivated in substantial
part by a desire to punish an individual for exercise of a
constitutional right.” Mitchell v. Horn, 318 F.3d 523, 530 (3d
Cir.2003). Prisoners have a right under the First Amendment
to file grievances, and where a prison official threatens an
inmate, because the inmate exercised his constitutional rights,
in a manner “sufficient to deter a person of ordinary firmness”
from exercising his constitutional rights in the future, a
constitutional violation has occurred. See id. Here, the facts as
alleged in the complaint suggest threats due to the plaintiff's
filing of grievances that would be sufficient to chill future
complaints. Thus, the complaint states a claim for relief as to
Angelope, and the motion to dismiss will be denied.

G. Defendant Carroll
The complaint alleges that Carroll, a Luzerne County district
attorney, sent two criminal complaints filed by the plaintiff
to the supervisory defendants, which led to prison officials
assaulting the plaintiff in retaliation. The plaintiff brings due
process claims against Carroll. The magistrate judge held

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Keys v. Carroll, Not Reported in F.Supp.2d (2011)

that no claim was stated as against Carroll, and the plaintiff
objects.
The plaintiff argues that under state law, he possesses a due
process right to have his criminal complaint investigated.
The Fourteenth Amendment provides that no state shall
“deprive any person of life, liberty, or property, without due
process of law.” To prevail on a procedural due process
claim under 42 U.S.C. § 1983, a plaintiff must show (1) that
he possessed a life, liberty, or property interest within the
meaning of the Fourteenth Amendment, and (2) that he did
not have procedures available to him that would provide him
with “due process of law.” Robb v. City of Philadelphia, 733
F.2d 286, 292 (3d Cir.1984). A plaintiff must establish each of
the following five elements in relation to a § 1983 procedural
due process claim:
*5 (1) that he was deprived of a
protected liberty or property interest;
(2) that this deprivation was without
due process; (3) that the defendant
subjected the plaintiff, or caused
the plaintiff to be subjected to, this
deprivation without due process; (4)
that the Defendant was acting under
color of state law; and (5) that the
plaintiff suffered injury as a result of
the deprivation without due process.
Sample v. Diecks, 855 F.2d 1099, 1113–14 (3d Cir.1989).
“[P]roperty interests protected by procedural due process
extend well beyond actual ownership of real estate, chattels,
or money.” Bd. of Regents of State Colleges v. Roth, 408 U.S.
564, 571–72, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). Property
interests also extend to entitlements granted by the state, see
id. at 577, and courts have found property interests in a variety
of entitlements, see Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct.
1011, 25 L.Ed.2d 287 (1970) (welfare); Slochower v. Bd. of
Educ., 350 U.S. 551, 76 S.Ct. 637, 100 L.Ed. 692 (1956)
(tenure).
However, “[t]o have a property interest in a benefit, a person
clearly must have more than an abstract need or desire for
it. He must have more than a unilateral expectation of it. He
must, instead, have a legitimate claim of entitlement to it.”
Roth, 408 U.S. at 577. Whether a person has a legitimate
claim of entitlement in a benefit depends on state law. Id.
For example, where a state law defines welfare eligibility and

gives all who meet the criteria the right to receive welfare
benefits, the right to welfare is an entitlement implicating
procedural due process. See id. (citing Goldberg, 397 U.S.
254, 90 S.Ct. 1011, 25 L.Ed.2d 287).
Rule 506 of the Pennsylvania Rules of Civil Procedure
provides, with respect to private criminal complaints, that:
(A) When the affiant is not a law enforcement officer,
the complaint shall be submitted to an attorney for
the Commonwealth, who shall approve or disapprove it
without unreasonable delay.
(B) If the attorney for the Commonwealth:
(1) approves the complaint, the attorney shall indicate
this decision on the complaint form and transmit it to the
issuing authority;
(2) disapproves the complaint, the attorney shall state the
reasons on the complaint form and return it to the affiant.
Thereafter, the affiant may petition the court of common
pleas for review of the decision.
This language requires that the attorney approve or
disapprove the complaint. The plaintiff suggests that because
the attorney has an obligation to investigate each complaint,
each complainant has a property interest in having an
investigation completed.
Even assuming that the attorney has an obligation to
investigate a complaint, it does not follow that the
complainant has an entitlement to have his complaint
investigated. Indeed “[m]aking the actions of government
employees obligatory can serve various legitimate ends other
than the conferral of a benefit on a specific class of people.”
Town of Castle Rock v. Gonzales, 545 U.S. 748, 765, 125
S.Ct. 2796, 162 L.Ed.2d 658 (2005). In criminal law, it is
“[t]he serving of public rather than private ends [which] is the
normal course” because criminal acts harm society as a whole.
Id. at 761, 765 (discussing “[t]he deep-rooted nature of lawenforcement discretion, even in the presence of seemingly
mandatory legislative commands”).
*6 In light of the traditional discretion given to prosecuting
attorneys and law enforcement officials, coupled with Rule
506's failure to clearly grant a complainant a statutory
entitlement to have his complaint investigated, it is evident
that the legislature did not intend to confer a statutory
entitlement to complainants to have investigations conducted.

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Keys v. Carroll, Not Reported in F.Supp.2d (2011)

Thus, the plaintiff has no protected property interest
within the meaning of the Fourteenth Amendment, and
the procedural due process claim against Carroll must be
dismissed. Because amendment of this claim would be futile,
leave to amend will not be given. See Alston v. Parker, 363
F.3d 229, 235 (3d Cir.2004).
However, the plaintiff also alleges that Carroll's actions in
sending the complaint back to the supervisory defendants
led to his mistreatment. He argues that on these facts, the
complaint states a substantive due process claim under the
state-created danger doctrine.
Generally, the Fourteenth Amendment's due process
protections do not obligate the state to protect its citizens.
DeShaney v. Winnebago County Dep't of Soc. Servs., 489 U.S.
189, 195–96, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989). The
state-created danger doctrine recognizes that a substantive
due process violation may occur “when state authority is
affirmatively employed in a manner that injures a citizen or
renders him ‘more vulnerable to injury from another source
than he or she would have been in the absence of state
intervention.’ ” Bright v. Westmoreland Cnty., 443 F.3d 276,
281 (3d Cir.2006) (quoting Schieber v. City of Phila., 320
F.3d 409, 416 (3d Cir.2003)).
To survive dismissal, a plaintiff must allege facts showing
he is entitled to relief on the following four elements: (1)
“the harm ultimately caused [must have been] foreseeable
and fairly direct;” (2) the conduct must have occurred “with
a degree of culpability that shocks the conscience;” (3) the
plaintiff must be “a foreseeable victim of the defendant's acts,
or a member of a discrete class of persons subjected to the
potential harm brought by the state's actions;” and (4) the
state actor must have “used his or her authority in a way that
created a danger to the citizen or that rendered the citizen
more vulnerable to danger than had the state not acted at all.”
Bright, 443 F.3d at 281.
In order for conduct to have occurred with a conscienceshocking degree of culpability, the actor must have
disregarded a “known or obvious consequence of his action.”
Bd. of County Comm'rs v. Brown, 520 U.S. 397, 410, 117
S.Ct. 1382, 137 L.Ed.2d 626 (1997). Here, the plaintiff has
failed to allege any facts suggesting that sending a complaint
back to prison officials to be investigated more thoroughly
happened with a conscience-shocking degree of culpability.
Moreover, the plaintiff's harm was neither foreseeable nor
direct. Therefore, the plaintiff cannot state a substantive due

process claim upon which relief can be granted, and his claim
against Carroll must be dismissed. An opportunity to amend
this claim will be given to the plaintiff. See Alston v. Parker,
363 F.3d 229, 235 (3d Cir.2004).
*7 Defendant Carroll also requests prosecutorial immunity.
While prosecutors have absolute immunity for conduct
necessary to prepare for a case, Schrob v. Catterson, 948
F.2d 1402, 1414 (3d Cir.1991), this immunity does not extend
to “mere[ ] investigative evidence-gathering,” Kulwicki v.
Dawson, 969 F.2d 1454, 1466 (3d Cir.1992). With respect
to investigations, an officer “must meet the ‘objective
reasonableness' standard of qualified immunity to be relieved
of suit.” Kulwicki, 969 F.2d at 1466. At this time, there is
insufficient information from which to determine whether
Carroll should be granted qualified immunity. Should the
plaintiff amend his complaint against Carroll, she is free to
raise immunity again.

III. Conclusion
For the reasons explained above, the magistrate judge's report
and recommendation will be adopted to the extent that it
recommends granting Defendant Carroll's motion to dismiss
(Doc. 2). The report and recommendation will be rejected
to the extent that it recommends granting the remaining
defendants' motion to dismiss. If he can do so, the plaintiff
will have twenty-one days from the date of this opinion to
amend his complaint to state a substantive due process claim
against Defendant Carroll. An appropriate order follows.

ORDER
NOW, this 28th day of March, 2011, IT IS HEREBY
ORDERED that the report and recommendation (Doc. 21)
will be ADOPTED in part and REJECTED in part as
follows:
(1) The recommendation that Defendant Carroll's motion to
dismiss (Doc. 2) be granted is ADOPTED.
(2) The plaintiff has twenty-one days from the date of this
order in which to submit an amended complaint that states
a claim upon which relief can be granted against Defendant
Carroll on the substantive due process claim. If the plaintiff
fails to do so, he has waived the right to amend and Defendant
Carroll will be dismissed from the action.

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Keys v. Carroll, Not Reported in F.Supp.2d (2011)

(3) The recommendation that the other defendants' motion
to dismiss (Doc. 8) be granted on the remaining claims is
DENIED.
End of Document

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