Collins v. DeRose et al

Filing 41

MEMORANDUM (Order to follow as separate docket entry)Accordingly, the request for dismissal on the basis of non-exhaustion is also a meritorious basis for dismissal. An appropriate Order will enter.Signed by Honorable Richard P. Conaboy on 2/17/16. (cc)

IN THE UNITED STATES DISTRICT COURT

FOR THE

MIDDLE DISTRICT OF PENNSYLVANIA

MATTHEW A . COLLINS ,

Plaintiff
CIVIL NO.

v.
DOMMINICK L.

3:CV-14-2425

(Judge Conaboy)

DEROSE , ET AL .,
Defendants

t

1 7 2016

MEMORANDUM

Background

This

Q£Q

se c ivil rights a c tion pursuant to 42 U. S.C .

was filed by Matthew A . Collins

§

1983

(Plaintiff) , an inmate presently

co nfined at the Forest State Corre c tional Institution, Marienville ,
Pennsylvania

(SCI-Forest) .

8 , 2016 , PrimeCare Medical,

By Memo randum and Order dated February
Inc.

("PrimeCare")

was substituted for

Defendant Dauphin County Prison Medical Department and PrimeCare ' s
motion to dismiss was granted.

See Doc.

39.

Remaining Defendants are Plaintiff's prior pla c e of
incarceration, the Dauphin County Prison and its Warden Dominick
DeRose . Plaintiff contends that on the morning of August 24,

2014 ,

he slipped and fell on a "wet and saturated" floor while assigned
t o a work detail in an upstairs shower area of the Dauphin County
Prison.

Doc . 1, p.

3.

The Complaint alleges that there were no wet

floor signs in the area and it was unlit at the time of his fall

1

and as such violated both his constitutional rights and the
Occupational Safety and Health Act (OSHA). Collins purportedly
injured his back, lower back, and tail bone as a result of his
fall.
It is undisputed that the prison's medical staff was
notified and responded within ten minutes.

However, after Collins

was helped off the floor and was taken to the prison's medical
department, he was allegedly not given any treatment.

After

Plaintiff continued to complain of lower back pain, an x-ray was
ordered and performed on August 26, 2014 and he was prescribed
Naprosyn for pain.

Collins was subsequently transferred to a state

correctional facility where he is allegedly been prescribed a cane
and pain medication.

The Complaint additionally contends that

although Collins was given a diabetes test at the prison, he was
denied previously prescribed "diabetic medication for 6 month[s]."
rd. at p. 4.

Plaintiff seeks compensatory damages for pain,

suffering, negligence, and emotional stress.
Presently pending is a motion to dismiss filed by the two
Remaining Defendants.

Doc. 22.

The opposed motion is ripe for

consideration.
Discussion
Standard of Review

As previously discussed by this Court, 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.

A court in

addressing a motion to dismiss must "accept as true all factual
allegations in the complaint and all reasonable inferences that can
2

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 complaint must set forth 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 O.S. 544, 555 (2007).

This requirement

"calls for enough facts to raise a reasonable expectation that
discovery will reveal

dence of" the necessary elements of the

plaintiff's cause of action.

. at 556.

A complaint must contain

"more than an unadorned, the-defendant-unlawfully-harmed-me
accusation." Ashcroft v. Iqbal, 556 O.S. 662 , 678

(2009).

"Threadbare recitals of the elements of a cause of action,
supported by mere conclusory statements do not suffice."

Legal

conclusions must be supported by factual allegations and the
complaint must state a plausible claim for relief.

See id. at

679."
The reviewing court must determine whether the complaint
"contain[s] either direct or inferential allegations respecting all
the material elements necessary to susta
viable legal theory."

recovery under some

. at 562i see also Phillips v. County of

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
1. "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.
3

evidence of the necessary element[s]1f of a particular cause of

action).

Finally, it is noted that pro se pleadings must

afforded liberal construction.

404 U.S.

519, 520 (1972).

Damages in Sum Certain

The Remaining Defendants' pending motion correctly notes
that the Complaint in part seeks a specific amount of compensation.
Doc. 28, p. 14.

They contend that Plaintiff's demand

r

ific sums of money damages should be stricken pursuant to M.D.
Pa. Local Rule 8.1.
Pursuant to the Local Rules of this Court, a prayer for
relief which seeks a specific amount of damages must be stricken.
See

M.D. Pa. Local Rule 8.1(a demand for judgment shall not c

any specific sum where unliquidated damages are involved).

im

Based

upon the provision of Local Rule 8.1, the Court will grant the
Remaining Defendants' request and t
se complaint to the extent which

demand for relief in the pro
seeks a specific sum of money

damages will be stricken.
Mootness

Remaining Defendants next contend that the Complaint to the
extent that it seeks injunctive or declaratory relief is subject to
dismissal on the basis of mootness.

See Doc. 28, p. 14.

Federal courts can only resolve actual cases or
controvers

s, U.S. Const., Art. III,

§

2, and this limitation

subsists "through all stages of federal judicial proceedings.
If

•

see also

Steffel v. Thompson, 415 U.S. 452, 459 (1974)

(the adjudicatory power of a federal court depends upon "the

4

continuing existence of a live and acute controversy)"
original).

An actual controversy must

(emphasis

extant at all stages of

review, not merely at the time the complaint is filed."
n.10

(c

ions omitted).

at

"Past exposure to illegal conduct is

insufficient to sustain a present case or controversy .
unaccompanied by continuing,

sent adverse effects."

v. Meese, 622 F. Supp. 1451, 1462 (S.D.N.Y. 1985)

. if
Rosenberg

(citing O'Shea v.

Littleton, 414 U.S. 488, 495-96 (1974)); see also Gaeta v.
Civil No. 3:CV-02-465, slip op. at p. 2 (M.D. Pa. May
17,2002)

(Vanaskie, C.J.).

Furthermore, an inmate's claim for injunctive and
laratory reI

f fails to

inmate has been transferred.
1985)

(11th C

sent a case or controversy once the
Wahl v. McIver, 773 F.2d 1169, 1173

(citation omitted); see also Carter v. Thompson,

808 F. Supp. 1548, 1555 (M.D. Fla. 1992).
When Plaintiff

led this action

at the Dauphin County Prison.
indication that Coll
Prison in the fores
Complaint,

s

11

was no longer confined

Doc. 1, p. 1.

There is no

returned to the Dauphin County

future.

Bas

upon a review oth the

does not appear that Collins is seeking injunctive or

declaratory rel

f.

Nonetheless, this Court agrees with the

Remaining Defendants that Plainti

's action to the extent t

may possibly be seeking injunctive and declaratory relief based
upon actions which occurred during his

or confinement at the

Dauphin County Prison is subject to dismissal on the basis of
mootness.

5

it

The next argument for

smissal asserts that the Complaint

to the extent that it seeks to raise a claim under OSHA must fail
as OSHA does not create a private cause of action.

See Doc. 28, p.

14.
It is well settl

that "OSHA does not create a private

cause of action against an employer for a

olation.

National R.R. Passenger, Corp., 960 F.2d 1156, 1164
Marvel v. Prison Industries, Inc., Civil No.
1239962 *3 (D. Del. Aug. 24, 2000) (no
OSHA).

99-113,

(3d Cir. 1992);
2000 WL

ivate cause of action under

request for dismissal of the OSHA claim

Accordingly, t

will be granted.
Dauphin County Prison

Remaining Defendants contend in
Prison is not a properly named defendant.
Courts have repeatedly recogni
correctional facility is not a
liability.

rt that the Dauphin County
Doc. 28, p. 7.
that a prison or

rson for purposes of civil rights

See Fischer v. Cahill, 474 F.2d 991, 992 (3d Cir.

1973); Philogene v. Adams County Prison, Civ. No. 97-0043, slip op.
at p. 4 (M.D. Pa. Jan. 30, 1997)
County Prison, C

(Rambo, C.J.); SDonsler v. Berks

. A. 95-1136, 1995 WL 92370, at *1 (E.D. Pa. Feb.

28, 1995).

Pursuant to the above standards, the Dauphin County

Prison is

early not a person and therefore not subject to civil

rights liability.

Thompkins v. Doe, No. 99 3941, slip op. at 3

(3d Cir. March 16, 2000).

2. Of course, if Plaintiff was to establish an OSHA violation it
would be relevant to the merits of his Eighth Amendment claim.
6

There is also no discernible claim by Plaintiff that his
constitutional rights were violated as the result of any policy,
custom or practice of the Dauphin County Prison.

Monell v.

Department of Social Servs., 436 u.S. 658, 690-91 (1978).
Accordingly, this Court agrees that the Dauphin County Prison is
not properly named as a defendant.
Respondeat Superior

It is next argued that the allegations aga

t Warden DeRose

are solely premised on a theory of respondeat superior.

The sole

claims asserted against the two Remaining Defendants assert that
there was a failure to protect Collins' sa

ty from an alleged

hazardous condition, i.e. a wet, slippery floor.

The Plaintiff's

claims of deliberate indifference to his medical needs are not
raised against either Remaining Defendant.3
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
Unit

States.

Groman v. Township of Manalapan, 47 F.3d 628, 638

3.
Even if such claims were deemed to be raised against the non­
medical Remaining Defendants, as correctly noted by the pending
motion to dismiss a non-physician defendant can not be considered
deliberately indifferent for failing to respond to an inmate's
medical complaints when he is already receiving treatment by the
prison's medical staff.
Durmer v. O'Carroll, 991 F.2d 64, 69
(3d
r. 1993).
Since Plaintiff acknowledges receiving treatment by the
medical staff and there is no contention that the Warden refused to
provide any prescribed care, a claim of medical deliberate
indifference is not set forth in the Complaint.

7

(3d Cir. 1995); Shaw by Strain v. Strackhouse, 920 F.2d 1135, 1141­
42

(3d Cir. 1990).
Claims brought under

of respondeat superior.
(3d Cir. 1988).

§

1983 cannot be premised on a theory

Rode v. Dellarciprete, 845 F.2d 1195, 1207

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.
Goode, 423 U.S. 362

See Rizzo v.

(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.
[PJersonal 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.
Union,

See Jones v. North Carolina Prisoners Labor

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) ("[TJhe existence of a

prison grievance procedure confers no liberty interest on a
prisoner.").

Consequently, any attempt by Plaintiff to establish

liability against a defendant 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
Pryor-El v. Kelly,

§

1983 liability);

892 F. Supp. 261, 275 (D. D.C. 1995)
8

(because

prison grievance procedure does not confer any substantive
constitutional rights upon prison inmates, the prison offic

lsI

failure to comply with grievance procedure is not actionable).
There are no specific factual allegations of involvement in
constitutional misconduct rais

against Warden DeRose.

As such,

it appears that the Complaint is improperly attempting to establish
bas

upon either the DeRose's supervisory capacity or his review

of Plaintiff's grievances.

The request for entry of dismissal in

favor of Defendant Warden DeRose will be granted.'
Administrative Exhaustion

According to the Remaining Defendants, "Pla

fore the prison finished its review"

gun and filed this lawsuit
of his admi

iff jumped the

strative grievances."

Doc. 28, p. 13.

In light of

that action, they contend that this matter should be dismissed for
non-exhaustion of administrative remedies.
Section 1997e(a) of t

le 42 U.S.C. provides:

No action shall be brought with respect to
prison conditions under Section 1979 of
the Revised Statutes of the United States
(42 U.S.C. 1983), or any other
1
law, by a prisoner confined in any jail,
prison, or other correctional facility
until such administrat
remed s as are
available are exhausted.
Section 1997e(a)

res administrat

exhaustion

Uirrespective of the forms of relief sought and offered through
administrative avenues."

Porter v. Nussle, 122 S.Ct. 983, 992

4. The Plaintiff was simply not presented any facts to show that
DeRose was personally involved in any conduct which cou
support a
claim that the Warden was aware of the existence of a substantial
risk of serious harm and deliberately disregarded the apparent
risk.
9

(2002); Booth v. Churner, 532 U.S. 731, 741 n.
for moneta

relief are not excused

Claims

the exhaustion

204 F.3d 65, 74

requirement.

6 (2001).

(3d Cir. 2000).

smissal of an inmate's claim is appropriate when a prisoner has
fail

to

ust his available administrative remedies before

bringing a civil rights action.
2d 838, 843 (E.D. Pa. 2000).

Ahmed v. Sromovski, 103 F. Supp.

"[E]xhaustion must occur prior to

filing suit, not while the suit is pending."
F.3d 1152, 2000 WL 167468, *2 (6:]-:
Francis, 196 F.3d 641, 645

r.

Tribe v. Harvey, 248

2000) (citing

Cir.1999));

165 Fed. Appx. 991, 993 (3d Cir. 2006).
An inmate is not required to specifically plead or
r complaint.

demonstrate exhaustion in his or
549 U.S. 199, 216 (2007) i

See Jones v. Bock,

see also Ray v. Kertes, 285 F.3d 287

Cir. 2002) (a prisoner does not have to al
he has exhausted administrative remedies).

ge in his complaint that
Rather, pursuant to the
130 F.3d

standards announced in

fendant asserting

Cir. 1997), it is the burden of a

of non-exhaustion to plead and prove it.

(3d

568, 573 (
defense

The United States

Supreme Court in Jones noted that the primary purpose of the
exhaustion requirement is to allow prison officials to address
complaints before being

ected to suit, reducing litigation to

the extent complaints are satisfactorily resolved, and improving

5.
In
, 318 F.3d 523, 529 (3d Cir. 2003), the
United States Court of Appeals for the Third Circuit similarly
stated that "[fJailure to exhaust administrative remedies is an
affirmative defense for the defendant to plead."
10

litigation that does occur by leading to the preparation of a
useful record.
The administrative exhaustion mandate also imp ies a
procedural default component.
(3d Cir. 2004).

As exp

Spruill v. Gillis 372 F.3d 218, 222

ined by the Third Circuit Court of

Appeals, a procedural default rule "prevents an end-run around the
exhaustion requirement."
compl

at 230.

with the spe

It also ensures "prisoner

fic requirements of the grievance system"

and encourages inmates to pursue their administrative grievances
"to the

lest."

Id.

S

arly,

that proper exhaustion of avail

Supreme Court has observed
e administrative remedies is

mandatory, meaning that prisoners must comply with the g
tations.

system's procedural rules, including time 1
N go,

548 U. S. 81

evance
Woodford v.

(2006).

The Court of Appeals for the Third Circuit has recognized

t "[tJ

re is no futility exception" to t

requirement.

Brown v. Croak, 312 F.3d 109, 112 (3d Cir. 2002)

(citing

204 F.3d at 75.

A subsequent

an inmate's argument that exhaust

because prisoner grievances were regular
186 Fed.

Appx. 271, 274

(3d Cir.

sion by the Thi
ility exception by

Circuit Court of Appeals reiterated its no
reject

exhaustion

should be excused
reject

2006).

Hill v.
The Court of

Appeals has also rejected "sensitive' subject matter or 'fear of
retaliation' as a basis for excusing a
st./I

isoner's

281 Fed.

2008).

11

lure to
110, 113 (3d Cir.

ished four step

The Dauphin County Prison has an est

A copy of the poli

evance pro

inmate

has been

Doc. 28-2.

submitted by the Remaining Defendants.

It

provides that an inmate seeking resolution of problems or other
issues of concern a

sing during the course of

first file a written grievance with the Warden.
Wa

An appeal from the

's decision may be made to the Prison Board Chairman.

If

taken to

unsatisfied with that response, an appeal may

Thereafter, a final appeal may be presented to

Prison Boa
Dauph

s confinement must

County Solicitor.
iff's opposing brief

Remaining Defendants and

agree that he submitted an initial grievance with t
about August 25, 2014.
r 13, 2014.7

on

See Doc. 32, p. 1.

h

Warden on or

This lawsuit was filed

The parties also agree

t

a final

appeal was pursued with the Dauphin County Solicitor

administrat

on March 9, 2015 and was still pending at the time this motion to
id. at p. 3.

dismiss was filed.
S

Plaintiff

s that his final administrative appeal

was still pending at the time this matter was filed,

Remaining

Defendants have satisfied their burden under Williams of
establishing that Collins filed this lawsuit be
Dauphin County
Plaintiff acknowl

son administrative gr
s that his c

re completing the

e procedure.

The

ims against the Remaining

6.
Since Remaining Defendants have filed a motion to dismiss, a
supporting declaration submitted in s
of the motion will not
be considered.
The prison's administrat
grievance procedure
however, is a public record and may be taken judicial notice of.
7.

The Complaint is dat
December 13, 2014 (Doc. 1, p. 6) and
11 be deemed filed as of that date.
Houston v Lack, 487 U.S.
266 (1988)
12

Defendants were not administratively exhausted prior to the filing
of this action and there is no basis for a determination that
exhaustion should be excused.

Accordingly,

the request for

dismissal on the basis of non-exhaustion is also a meritorious
basis for dismissal.

An appropriate Order will enter.

CONABOY
United States
strict

DATED: FEBRUARY

11~016

8.
Based upon the Court's determinations herein, discussion of
additional arguments for dismissal raised by the Remaining
Defendants is not warranted.

13