Duganne v. Giroux et al

Filing 50

MEMORANDUM (Order to follow as separate docket entry) re 35 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM in Amended Complaint filed by Corizon Medical Department, Dr. Famiglio, 37 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by Clemens, Harding, Wendy Nicholas, Frank Welsh, Moore, Boyles, Giroux Signed by Honorable Malachy E Mannion on 9/15/14. (Attachments: # 1 Unpublished Opinion(s), # 2 Unpublished Opinion(s), # 3 Unpublished Opinion(s))(bs)

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United States District Court,
E.D. Pennsylvania.
Eric Christopher HALL, Plaintiff,
v.
George WAGNER, Defendant.
Civil Action No. 10–0870.
Oct. 29, 2010.
Eric Christopher Hall, Leesport, PA, pro se.
ORDER
ROBERT F. KELLY, Senior District Judge.
*1 AND NOW, this 29th day of October, 2010, upon
consideration of Defendant George Wagner's Motion to
Dismiss (Doc. No. 17), it is hereby ORDERED that
Defendant's Motion is GRANTED and that Plaintiff's
Complaint is dismissed without prejudice.
MEMORANDUM
Presently before the Court is Defendant George
Wagner's (“Wagner” or “Defendant”) Motion to Dismiss
pursuant to Federal Rule of Civil Procedure 12(b)(6). For
the following reasons, Defendant's Motion is granted.
I. BACKGROUND
Plaintiff Eric Christopher Hall (“Hall” or “Plaintiff”)
initiated this pro se 42 U.S.C. § 1983 civil rights action
against Wagner based on an incident that occurred while
he was incarcerated at Berks County Prison (the “Prison”).
Notably, Wagner is the Warden at the Prison. Specifically,
Hall alleges that he was injured when a weld on the frame
of a bunk bed broke as he was climbing onto the top bunk.
On June 17, 2010, Hall filed his original Complaint in
this Court. Hall's Complaint consists of the following
allegations:

I was climbing onto the top bunk when the frame broke
from the weld that held it together.
1. [Wagner] is allowing conditions to exist in his prison
that are unsafe. There is no step ladder to safely ascend
to the top bunk, therefore causing my injuries.
2. [Wagner] allowed conditions in his prison so extreme
that the weld that held this repaired bunk together was
faulty, therefore causing my injury.
3. [Wagner] failed to protect me from injury while in his
prison.
(Compl. at 4.)
On June 28, 2010, Hall filed an Amended Complaint
which describes his alleged injuries in more detail. The
Amended Complaint states:
“I, Eric C. Hall, sustained lower back injuries when the
bed broke upon me trying to get on the top bunk. The
medical treatment that I've been receiving has been only
pain medication. I have been scheduled for a M.R.I. and
possible surgery by Dr. Gessner because the pain has
not subsided. The symptons [sic] of my injuries are
consistent with a pinched nerve (sciatic), also stated by
Dr. Gessner. I have all of the sick calls and request slip
responses concerning the time spand [sic] and
continuing complaints of my discomfort. If any further
information is necessary please inform me of the
spcifics [sic].
(Am. Compl. at 1.) The Court will consider the
allegations in both the original Complaint and Amended
Complaint for purposes of the instant Motion.
II. STANDARD OF REVIEW
A motion to dismiss under Federal Rule of Civil
Procedure 12(b) (6) tests the sufficiency of a complaint.
Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir.1993).

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Under Rule 12(b)(6), the defendant bears the burden of
demonstrating that the plaintiff has not stated a claim upon
which relief can be granted. Fed.R.Civ.P. 12(b) (6); see
also Hedges v. United States, 404 F.3d 744, 750 (3d
Cir.2005). In Bell Atlantic Corporation v. Twombly, the
Supreme Court stated that “a plaintiff's obligation to
provide the ‘grounds' of his ‘entitle[ment] to relief’
requires more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action will not do.”
550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929
(2007).
*2 Following Twombly, the Third Circuit has
explained that the factual allegations in the complaint may
not be “so undeveloped that it does not provide a
defendant the type of notice which is contemplated by
Rule 8.” Phillips v. County of Allegheny, 515 F.3d 224,
233 (3d Cir.2008). Moreover, “it is no longer sufficient to
allege mere elements of a cause of action; instead ‘a
complaint must allege facts suggestive of [the proscribed]
conduct.’ “ Id. (alteration in original) (quoting Twombly,
550 U.S. at 563 n. 8). Furthermore, the complaint's
“factual allegations must be enough to raise a right to
relief above the speculative level.” Id. at 234 (quoting
Twombly, 550 U.S. at 555). “This ‘does not impose a
probability requirement at the pleading stage,’ but instead
‘simply calls for enough facts to raise a reasonable
expectation that discovery will reveal evidence of the
necessary element.’ ” Id. (quoting Twombly, 550 U.S. at
556).
In Ashcroft v. Iqbal, the Supreme Court applied the
Twombly standard, stating that “[t]o survive a motion to
dismiss, a complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible
on its face.’ “ ––– U.S. ––––, ––––, 129 S.Ct. 1937, 1949,
173 L.Ed.2d 868 (2009) (citing Twombly, 550 U.S. at
570). The Supreme Court explained that deciding whether
a “complaint states a plausible claim for relief will ... be a
context-specific task that requires the reviewing court to
draw on its judicial experience and common sense.” Id. at
1950. “While legal conclusions can provide the framework
of a complaint, they must be supported by factual
allegations. When there are well-pleaded factual
allegations, a court should assume their veracity and then
determine whether they plausibly give rise to an
entitlement to relief.” Id.

Notwithstanding Twombly and Iqbal, the general rules
of pleading still require only a short and plain statement of
the claim showing that the pleader is entitled to relief, not
detailed factual allegations. Phillips, 515 F.3d at 231.
Moreover, when evaluating a motion to dismiss, the court
must accept as true all well-pleaded allegations of fact in
the plaintiff's complaint, and must view any reasonable
inferences that may be drawn therefrom in the light most
favorable to the plaintiff. Id.; Buck v. Hampton Twp. Sch.
Dist., 452 F.3d 256, 260 (3d Cir.2006). The court must
“determine whether, under any reasonable reading of the
complaint, the plaintiff may be entitled to relief.”
Pinkerton v. Roche Holdings Ltd., 292 F.3d 361, 374 n. 7
(3d Cir.2002).
Importantly, it is well-settled that pro se complaints
should be liberally construed. Haines v. Kerner, 404 U.S.
519, 520–21, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972). Pro se
complaints, “however inartfully pleaded,” must be held to
“less stringent standards than formal pleadings drafted by
lawyers.” Id. “If the court can reasonably read pleadings
to state a valid claim on which the litigant could prevail,
it should do so despite failure to cite proper legal
authority, confusion of legal theories, poor syntax and
sentence construction, or the litigant's unfamiliarity with
pleading requirements.” Sloan v. Brooks, No. 08–163,
2010 WL 3420675, at *2 (W.D.Pa. Aug.10, 2010)
(citations omitted). Pursuant to these liberal pleading
rules, “during the initial stages of litigation, a district court
should construe all allegations in a complaint in favor of
the complainant.” Id. (citing Gibbs v. Roman, 116 F.3d 83
(3d Cir.1997)).
III. DISCUSSION
A. The Instant Motion is Uncontested
*3 As an initial matter, Defendant's Motion is
uncontested. Local Civil Rule 7.1(c) states, in relevant
part:
Unless the parties have agreed upon a different schedule
and such agreement is approved under Local Civil Rule
7.4 and is set forth in the motion, or unless the Court
directs otherwise, any party opposing the motion shall
serve a brief in opposition, together with such answer

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or other response which may be appropriate, within
fourteen (14) days after service of the motion and
supporting brief.... In the absence of timely response,
the motion may be granted as uncontested except that
a summary judgment motion, to which there has been no
timely response, will be governed by Fed.R.Civ.P.
56(c).
Loc. R. Civ. P. 7.1(c) (emphasis added); Fleming v.
U.S. Veterans Admin. Med. Ctrs., 348 F. App'x. 737, 738
(3d Cir.2009) (“We agree that the District Court acted
within its authority to dismiss the complaint as unopposed
pursuant to the Local Civil Rules .”).
In this case, Wagner filed the current Motion on
August 26, 2010. To date, Hall has not filed a response or
requested an extension of time to file a response. Thus,
under the plain language of the Local Rule, it would be
appropriate to grant the Motion as uncontested.
Nevertheless, because the Third Circuit “has
recommended that trial courts not grant motions to dismiss
pursuant to Rule 12(b)(6) in pro se civil rights actions
without analyzing the merits of the underlying complaint,”
we will examine the allegations in both Complaints and
dispose of the Motion on the merits rather than grant it as
uncontested. Credico v. Penn. State Police, No. 09–691,
2010 WL 331700, at *1 n. 1 (E.D.Pa. Jan.27, 2010)
(citing Stackhouse v. Mazurkiewicz, 951 F.2d 29, 30 (3d
Cir.1991)).

and not to pretrial detainees, it is well-settled that
the due process clause of the Fourteenth
Amendment guarantees detainees the same level
of protection mandated by the Eighth
Amendment for convicted persons.” McKnight
v. McDuffie, No. 405–183, 2007 WL 1087280,
at *3 n. 2 (S.D.Ga. Apr.9, 2007) (citing Hamm v.
DeKalb Cty., 774 F.2d 1567, 1573–74 (11th
Cir.1985)). As a result, the Court will analyze
this prison conditions case in light of the relevant
Eighth Amendment jurisprudence.
Pursuant to the Eighth Amendment, prisoners are
protected from cruel and unusual punishment. Farmer v.
Brennan, 511 U.S. 825, 834, 114 S.Ct. 1970, 128 L.Ed.2d
811 (1994). Significantly, however, “not all deficiencies
and inadequacies in prison conditions amount to a
violation of an inmate's constitutional rights.” Booth v.
King, 228 F. App'x 167, 171 (3d Cir.2007). “Cruel and
unusual punishment will only be found ‘where viewing the
totality of the conditions in the prison, the inmate's
conditions of confinement, alone or in combination,
deprive him of the minimal civilized measure of life's
necessities.’ “ Sloan v. Brooks, No. 08–163, 2010 WL
3420675, at *5 (E.D.Pa. Aug.10, 2010) (quoting Booth,
228 F. App'x at 171). The United States Supreme Court
has made clear that liability under § 1983 requires “more
than ordinary lack of due care for the prisoner's interests
or safety.” Whitley v. Albers, 475 U.S. 312, 319, 106 S.Ct.
1078, 89 L.Ed.2d 251 (1986).

B. Hall's Claim Under The Eighth Amendment
In the instant Motion, Wagner argues that Hall has
failed to adequately plead a constitutional violation.
Although it is not explicitly set forth in the pleadings, we
will infer from the pro se Complaints that Hall is
proceeding under the Eighth Amendment—alleging that
Wagner subjected him to cruel and unusual punishment
while he was incarcerated.FN1 We agree that Plaintiff has
failed to sufficiently plead an Eighth Amendment
violation.
FN1. The pleadings do not specify whether Hall
was a convicted prisoner or a pretrial detainee at
the time of the alleged constitutional violation.
Nevertheless, “[a]lthough the Eighth
Amendment's proscription of ‘cruel and unusual’
punishments applies only to convicted prisoners

*4 An Eighth Amendment claim against a prison official
meet two requirements: (1) “the deprivation alleged must
be, objectively, sufficiently serious” and (2) the “prison
official must have a sufficiently culpable state of mind.”
Farmer, 511 U.S. at 834; see also Beers–Capitol v.
Whetzel, 256 F.3d 120, 125 (3d Cir.2001). “In prison
conditions cases, ‘that state of mind is one of deliberate
indifference to inmate health or safety.’ ” Kimble v.
Tennis, No. 05–1871, 2006 WL 1548950, at *2 (M.D.Pa.
June 5, 2006) (quoting Farmer, 511 U.S. at 834).
The second prong of the Farmer test is a subjective one,
requiring the Plaintiff to establish that Defendants acted
with deliberate indifference. Davila–Bajana v. Holohan,
No. 04–253, 2010 WL 2757104, at *9 (W.D.Pa. June 17,

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2010). “To establish deliberate indifference: 1) a prison
official must know of and disregard an excessive risk to
inmate health or safety; 2) the official must be aware of
facts from which an inference could be drawn that a
substantial risk of serious harm exists, and 3) the official
must also draw the inference.” Id. (citing Farmer, 511
U.S. at 837).

direction or actual knowledge and acquiescence.”
Rode, 845 F.2d at 1207. In this case, Hall has not
averred that Wagner had any personal
involvement in the events or occurrences leading
up to incident with the bunk bed. Thus, any claim
for supervisory liability fails at this stage in the
litigation.

Here, Hall has failed to plead a cognizable claim of an
Eighth Amendment violation against Wagner.
Specifically, he has not alleged that Wagner was aware of
any unsafe conditions related to the bunk bed or
deliberately disregarded any potential issues. Hall has
simply not provided this Court with any direct or
circumstantial facts that would support a conclusion that
Wagner was subjectively aware of a risk of harm
associated with the structure of the relevant bed.

For the reasons set forth above, the Court finds that
Hall's Complaint and Amended Complaint must be
dismissed.

As the Third Circuit has stated, “[m]ere negligence claims
do not constitute ‘deliberate indifference.’ “ Innis v.
Wilson, 334 F. App'x. 454, 457 (3d Cir.2009). Moreover,
“[a]n accidental injury does not amount to an Eighth
Amendment violation when prison officials act negligently
or are unaware of a substantial risk of serious harm, which
results in injury.” Bennett v. City of Philadelphia, No.
07–2794, 2008 WL 4211701, at *6 (E.D.Pa. Sept.9,
2008). At most, Plaintiff alleges mere negligence or an
accidental injury. The facts alleged certainly do not set
forth that Wagner was deliberately indifferent to any risk
to Hall's safety or that Hall was subjected to any cruel and
unusual punishment.FN2

An appropriate Order follows.
E.D.Pa.,2010.
Hall v. Wagner
Not Reported in F.Supp.2d, 2010 WL 4273326 (E.D.Pa.)
END OF DOCUMENT

FN2. Hall's action under § 1983 also fails to the
extent that it is based on a theory of respondeat
superior. “Claims brought under § 1983 cannot
be premised on [this theory].” Kimble, 2006 WL
1548950, at *2 (M.D.Pa. June 5, 2006) (citing
Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d
Cir.1988)). “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.” Id. As the
Third Circuit has stated, “[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

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