Kovach v. Sevi et al

Filing 47

MEMORANDUM (Order to follow as separate docket entry). Furthermore, since Kovach has not made any viable showing that he should be excused from compliance with the exhaustion requirement, entry of dismissal on the basis of non-exhaustion with respe ct to the surviving claims is appropriate. To hold otherwise, would clearly undermine the intent of the exhaustion requirement to afford correctional administrators the initial opportunity to discover and correct their own errors. See Nyhuis v. Reno, 204 F.3d 65, 75 (3d Cir. 2000). Remaining Defendants unopposed motion to dismiss will be granted. An appropriate Order will enter re 32 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM Signed by Honorable Richard P. Conaboy on 8/25/14. (cc)

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

MICHAEL KOVACH,

:
:
Plaintiff
:
:
v.
:
:
SUPERINTENDENT KERESTES, ET AL., :
:
Defendants
:

CIVIL NO. 3:CV-13-1099
(Judge Conaboy)

_________________________________________________________________
MEMORANDUM
Background
This pro se civil rights complaint pursuant to 42 U.S.C. §
1983 was filed by Michael Kovach, an inmate presently confined at
the State Correctional Institution, Somerset, Pennsylvania (SCISomerset).

An Amended Complaint (Doc. 29) was thereafter filed.

By Memorandum and Order dated August 7, 2015, a motion to
dismiss by Defendant Doctor Tony Ianuzzo was granted. See Docs. 45
& 46.

Remaining Defendants are the following officials at

Plaintiff’s former place of confinement the Mahanoy State
Correctional Institution, Frackville, Pennsylvania (SCI-Mahanoy):
Superintendent John Kerestes; Unit Manager Burnedette Mason; and
Correctional Officer (CO) Cebulak.
Plaintiff states that he was placed in an SCI-Mahanoy cell
with Inmate Dean Palmer on October 16, 2012.

The Complaint asserts

that at the time of that placement, Superintendent Kerestes, Unit
Manager Mason, and CO Cebulak were “totally aware” that Palmer had
a “history of assaultive behavior” and required single cell status.
See Doc. 29, ¶ 8.

1

Plaintiff states that he was sleeping on the top bunk in his
cell during the early morning of October 17, 2012, when both he and
his cellmate were awoken by Palmer’s loud snoring.

Palmer

purportedly became restless, kept turning the light on and off, and
began pacing back and forth.

It is also alleged that Inmate Palmer

told Plaintiff that “I can’t sleep, your not either.”

Id. at ¶ 9.

A short while after Kovach attempted to go back to sleep,
his cellmate allegedly poked him in the ear with a pen.

When

Plaintiff attempted to climb out of the top bunk, Inmate Palmer
continued the attack by pulling Kovach to the floor of the cell.
Following Kovach’s activation of the cell’s panic button, Co
Cebulak responded to the incident but despite Palmer’s ongoing
agitated conduct would not allow Plaintiff to leave the cell for
approximately forty-five (45) minutes until other officers arrived.
The Amended Complaint suggests that if CO Ceulak had been making
his proper rounds, he could have prevented the attack from
occurring.

See id. at ¶ 16.

After Plaintiff’s removal from his cell, he was taken to the
prison infirmary where his injuries to his ear and face were
examined and cleaned by a nurse assistant.1

However, because there

was no doctor on duty Plaintiff went without treatment from 4:30
a.m. to 8:00 a.m.

When the doctor arrived the following morning,

Plaintiff’s ear was stitched and glued “back together.”

Id. at ¶

13.
The Complaint concludes that Cebulak’s conduct that morning
constituted deliberate indifference to his safety.

1.

Kovach also indicates that he injured his back.
2

Unit Manager

Mason likewise acted with deliberate indifference by purportedly
assigning Palmer, a prisoner with known psychiatric problem, a
single cell classification, and a history of assaults, as his
cellmate.

The Complaint further contends that Superintendent

Kerestes similarly acted with deliberate indifference by allowing
Palmer to be housed with another prisoner, and by not instituting a
policy which would allow correctional officers to immediately
remove an inmate assault victim such as Kovach from his cell; by
not having a doctor on duty at all times; and by not directing that
be Plaintiff transported to a hospital for immediate treatment.
The Amended Complaint seeks injunctive and declaratory relief as
well as compensatory and punitive damages.
Remaining Defendants have filed a motion to dismiss the
Amended Complaint. The unopposed motion (Doc. 32) is ripe for
consideration.
Discussion
The Remaining Defendants, who are all employees of the
Pennsylvania Department of Corrections, argue that they are
entitled to entry of dismissal on the grounds that: (1) the claims
for monetary damages against them in their official capacities are
barred by the Eleventh Amendment; (2) the Amended Complaint fails
to allege personal involvement by Kerestes and Mason in any
constitutional misconduct; (3) Plaintiff failed to exhaust his
available administrative remedies and (4) a viable claim of
deliberate indifference has not been alleged.

3

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
plaintiff’s cause of action.

Id. at 556.

A complaint must contain “more than an unadorned, thedefendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556
U.S. 662 (2009). “Threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements do not suffice.”
Iqbal, 556

U.S. at 678.

Legal conclusions must be supported by

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

See id. at 679.

“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).”

4

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).
Official Capacities
Remaining Defendants’ initial argument contends that the
claims for monetary damages against them in their official
capacities are barred by the Eleventh Amendment.
6.

See Doc. 35, p.

As previously noted, the argument is unopposed.
The Eleventh Amendment bars all suits against a state and

its agencies in federal court that seek monetary damages.

Walker

v. Beard, 244 Fed. Appx. 439, 440 (3d Cir. 2007); see also A.W. v.
Jersey City Public Schools, 341 F.3d 234, 238 (3d Cir. 2003).
Likewise, suits brought against state officials acting in their
official capacities are to be treated as suits against the
employing government agency.

Will, 491 U.S. at 70-71; Garden State

Elec. Inspection Serv. v. Levin, 144 Fed. Appx. 247, 251 (3d Cir.
2005).

As such, Kovach’s damage claims brought against the

Remaining Defendants in their official capacities are considered to

5

be against the state itself and are barred by the Eleventh
Amendment.2
Personal Involvement
The motion to dismiss next asserts that “Plaintiff fails to
allege any involvement by Superintendent Kerestes or Ms. Mason in
the events leading up to the October 17 assault.”

Doc. 35, p. 7.

Accordingly, those two defendants are entitled to entry of
dismissal.

The argument is unopposed.

A plaintiff, in order to state an actionable § 1983 civil
rights claim, 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.

See Groman v. Township of Manalapan, 47 F.3d

628, 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:

2.
To the extent that Plaintiff is seeking injunctive and
declaratory relief against the Remaining Defendants in their
official capacities, such requests are not barred by the Eleventh
Amendment. See Pennsylvania Federation of Sportsmen’s Clubs, Inc.
v. Hess, 297 F.3d 310, 323 (3d Cir. 2002).
6

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.
Inmates also do not have a constitutional right to a prison
grievance system.

See Jones v. North Carolina Prisoners Labor

Union, 433 U.S. 119, 137-138 (1977); Speight v. Sims, No. 08-2038,
2008 WL 2600723 at *1 (3d. Cir. Jun 30, 2008)(citing Massey v.
Helman, 259 F.3d 641, 647 (7th Cir. 2001)(“[T]he existence of a
prison grievance procedure confers no liberty interest on a
prisoner.”) Consequently, any attempt by Plaintiff to establish
liability against the Warden solely based upon the substance or
lack of response to his institutional grievances does not by itself
support a constitutional due process claim.

See also Alexander v.

Gennarini, 144 Fed. Appx. 924, 925 (3d Cir. 2005)(involvement in
post-incident grievance process not a basis for § 1983 liability);
Pryor-El v. Kelly, 892 F. Supp. 261, 275 (D. D.C. 1995) (because
prison grievance procedure does not confer any substantive
constitutional rights upon prison inmates, the prison officials'
failure to comply with grievance procedure is not actionable).
With respect to Defendant Kerestes, Plaintiff generally
claims that the Superintendent was “totally aware’ of Inmate
Palmer’s history of assaultive behavior and that said prisoner had
been previously designated to be housed in a single cell.
¶ 8.

Doc. 29,

The Superintendent also allegedly approved an institutional

practice or policy of not allowing a prisoner to be removed by a
7

guard unless other staff were present.

Moreover, Kerestes was

aware that the prison did not have a doctor on duty during the
third shift.
This Court agrees that any claim based upon Kererstes’
review of any grievance filed by Kovach does not establish personal
involvement in constitutional misconduct.

As such, any such

allegations are insufficient to assert a Section 1983 claim.

See

Watson v. Wetzel, No. 11-281J, 2013 WL 501376 *4 (W.D. Pa. Jan. 9,
2013); Wilkerson v. Shafer, No. 09-2539 2011 WL 900994 * 7 (M.D.
Pa. March 14, 20110( a claim that a defendant “should be held
liable for due process violations because they should have become
aware of the through their review of his misconduct appeals is
insufficient to establish their personal involvement in the
underlying unconstitutional conduct”).
Second, there are no facts asserted to show that the
Superintendent approved or was aware that Palmer was actually being
double celled with the Plaintiff.

There are also no facts set

forth showing that the Superintendent was contacted at home the
night of the assault and failed to authorize the prisoner’s
transfer to a hospital for immediate treatment.

Accordingly, it is

appears that with respect to those claims Plaintiff is attempting
to establish liability against Kerestes solely based upon his
supervisory liability which is prohibited by Rode.

Entry of

dismissal with respect to said claims is likewise appropriate.
However, the Amended Complaint does adequately allege that
Kerestes was personally involved in the initiation or acquiescence
of prison policies that resulted in deliberate indifference to the
Plaintiff’s well being. Namely, that a doctor was not on duty
8

during the overnight hours and that a policy resulted in a 45
minute delay in the extraction of Kovach from his cell after being
assaulted.

The request for dismissal of those claims on the basis

of lack of personal involvement will be denied.
With respect to Unit Manager, the Amended Complaint has
alleged that she personally knew or acquiesced in the decision to
allow Palmer and Kovach to be housed together despite the fact that
Palmer was previously designated for single cell placement because
of his history of assaultive behavior.

Those assertions adequately

allege personal involvement at this juncture in the proceedings by
Mason in an alleged failure to protect Plaintiff from a known risk
of harm.

Mason’s request for dismissal on the basis of lack of

personal involvement will be denied.
Kovach’s Amended Complaint states that he used the prison’s
grievance procedure “to try and solve the problem.”

Doc. 29, ¶ 14

Plaintiff indicates, and Remaining Defendants do not dispute, that
he filed a single administrative grievance regarding the events
underlying the Amended Complaint.
The Amended Complaint acknowledges that this sole grievance
was rejected and points out that copies of his grievance and
responses were submitted along with his Original Complaint.
id.

See

An attachment to the Original Complaint clearly shows that

Kovach’s sole grievance was rejected by the prison’s Grievance
Coordinator on the basis that grievances based upon different
events must be presented separately.

See Doc. 1, p. 13.

Following

a SOIGA appeal that decision was affirmed and said decision clearly
explained to the Plaintiff that concerns regarding medical
treatment resulting from the assault must be raised in a separate
9

grievance from concerns regarding allegations of failure to
protect.

See id. at p. 14.

Documents submitted by the Plaintiff himself show that his
grievance was rejected and not addressed on its merits.

Kovach has

also failed to oppose the pending non-exhaustion argument.

Since

Plaintiff’s submissions show that he failed to comply with the
grievance system’s procedural rules as mandated under Woodford,
remaining Defendants have satisfied their burden under Williams of
establishing that Plaintiff’s pending claims were not properly
exhausted.

Furthermore, since Kovach has not made any viable

showing that he should be excused from compliance with the
exhaustion requirement, entry of dismissal on the basis of nonexhaustion with respect to the surviving claims is appropriate. To
hold otherwise, would clearly undermine the intent of the
exhaustion requirement to afford correctional administrators the
initial opportunity to discover and correct their own errors.
Nyhuis v. Reno, 204 F.3d 65, 75 (3d Cir. 2000).

See

Remaining

Defendants’ unopposed motion to dismiss will be granted.3

An

appropriate Order will enter.

_S/Richard P. Conaboy____________________________
RICHARD P. CONABOY
United States District Judge

DATED: AUGUST 25 , 2014

3. In light of the Court’s conclusion, consideration of the
Remaining Defendants’ final argument is not required,
10

11