Vercusky v. Purdue
MEMORANDUM Based on the foregoing, Defendant's motion to dismiss will be granted. An appropriate Order shall issue.Signed by Honorable Robert D. Mariani on 12/16/16. (jfg)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
JOHN DAVID VERCUSKY,
Civil No. 3:15-cv-2461
Plaintiff John Vercusky ("Plaintiff'), an inmate formerly housed at the Federal
Correctional Institution, Schuylkill, in Minersville, Pennsylvania (FCI-Schuylkill,,)1,
commenced this Bivens 2, 28 U.S.C. § 1331, civil rights action on December 17,2015. (Doc.
1). The sole named Defendant is Warden Perdue. 3 (Id.). Plaintiff alleges that Warden
Perdue failed to install ladders for the upper bunks in the Special Housing Unit ("SHU") at
FCI-Schuylkill, which caused him to fall and sustain an injury. (Id. at p. 3).
Presently pending before the Court is Defendant's motion to dismiss pursuant to
Plaintiff is currently confined at the Lackawanna County Prison, in Scranton, Pennsylvania.
See (Doc. 19).
Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics, 403 U.S. 388 (1971).
Bivens stands for the proposition that "a citizen suffering a compensable injury to a constitutionally
protected interest could invoke the general federal-question jurisdiction of the district courts to obtain an
award of monetary damages against the responsible federal official." Butz v. Economou, 438 U.S. 478,
Incorrectly identified in the complaint as Warden "Purdue."
Federal Rule of Civil Procedure 12(b), or in the alternative, for summary judgment pursuant
to Federal Rule of Civil Procedure 56. (Doc. 14). For the following reasons, the motion to
dismiss will be granted.
Motion to Dismiss Standard of Review
A complaint must be dismissed under FED. R. CIV. P. 12(b)(6), if it does not allege
"enough facts to state a claim to relief that is plausible on its face." Bell At!. Corp. v.
Twombly, 550 U.S. 544, 570,127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007). The plaintiff must
aver "factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662,129 S. Ct.
1937,1949,173 L. Ed. 2d 868 (2009).
"Though a complaint 'does not need detailed factual allegations, ... a formulaic
recitation of the elements of a cause of action will not do.'" DelRio-Mocci v. Connolly Prop.
Inc., 672 F.3d 241, 245 (3d Cir. 2012) (citing Twombly, 550 U.S. at 555). In other words,
"[l1actual allegations must be enough to raise a right to relief above the speculative level."
Int'l Ass'n of Approved Basketball Officials, 710 F.3d 114, 118 (3d Cir. 2013)
(internal citations and quotation marks omitted). A court "take[s] as true all the factual
allegations in the Complaint and the reasonable inferences that can be drawn from those
facts, but ... disregard[s] legal conclusions and threadbare recitals of the elements of a
cause of action, supported by mere conclusory statements." Ethypharm S.A. France
Abbott Laboratories, 707 F.3d 223, 231, n.14 (3d Gir. 2013) (internal citations and quotation
Twombly and Iqbal require [a district court] to take the following three steps to
determine the sufficiency of a complaint: First, the court must take note of the
elements a plaintiff must plead to state a claim. Second, the court should
identify allegations that, because they are no more than conclusions, are not
entitled to the assumption of truth. Finally, where there are well-pleaded
factual allegations, a court should assume their veracity and then determine
whether they plausibly give rise to an entitlement for relief.
Connelly v. Steel Valley Sch. Dist., 706 F.3d 209,212 (3d Gir. 2013).
"[W]here 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 show[n] - that the
pleader is entitled to relief." Iqbal, 556 U.S. at 679 (internal citations and quotation marks
omitted). This "plausibility" determination will be a "context-specific task that requires the
reviewing court to draw on its judicial experience and common sense." Id.
However, even "if a complaint is subject to Rule 12(b)(6) dismissal, a district court
must permit a curative amendment unless such an amendment would be inequitable or
futile." Phillips v. Cnty. of Allegheny, 515 F.3d 224, 245 (3d Gir. 2008).
[E]ven when plaintiff does not seek leave to amend his complaint after a
defendant moves to dismiss it, unless the district court 'finds that amendment
would be inequitable or futile, the court must inform the plaintiff that he or she
has leave to amend the complaint within a set period of time.
Allegations of the Complaint
Plaintiff alleges that, on November 4, 2015, he fell and sustained an injury when he
was climbing into the upper bunk in his cell. (Doc. 1, pp. 2-3). Plaintiff claims that he
received minor abrasions on his knee and elbow as a result of the fall, and endured minor
pain. (Id. at p. 3). Plaintiff alleges that Defendant Perdue "neglect[ed]" to install ladders for
access to the top bunks in the SHU. (Id.). Lastly, Plaintiff states that his injury was
documented by medical staff after he submitted a sick call form. (Id.).
For relief, Plaintiff requests the installation of ladders in every cell at FCI-Schuylkill,
as well as an unspecified amount of punitive or compensatory damages. (Id. at p. 5).
Defendant argues that the Court should dismiss Plaintiff's complaint and/or grant
summary judgment to Warden Perdue because: (1) Plaintiff failed to state a constitutional
claim; (2) Plaintiff failed to properly exhaust administrative remedies; and (3) Warden
Perdue lacks personal involvement in the alleged constitutional violation and respondeat
superior cannot form the basis of a Bivens action. (Doc. 1, pp. 7-16). The Court concludes
that the "deliberate indifference" described throughout Plaintiff's complaint simply does not
rise to the level of a cognizable constitutional violation, and will dismiss the complaint on
Plaintiff alleges that Defendant Perdue "neglect[ed]" to install ladders for inmates to
access the top bunks in the SHU at FGI-Schuylkill. (Doc. 1, p. 3). As a result, Plaintiff
claims that he fell when attempting to climb to his top bunk, and sustained "minor" abrasions
on his knee and elbow. (Id.). The Eighth Amendment protects prison inmates from cruel
and unusual punishment. See Farmer v. Brennan, 511 U.S. 825, 832 (1994); Beers-Capitol
v. Whetzel, 256 F.3d 120, 125 (3d Gir. 2001). However, not all deficiencies and
inadequacies in prison conditions amount to a violation of a prisoner's constitutional rights.
See Rhodes v. Chapman, 452 U.S. 337, 349 (1981); Young v. Quinlan, 960 F.2d 351,359
(3d Gir. 1992). To assert an Eighth Amendment conditions of confinement claim, a prisoner
must satisfy both an objective and subjective test. See Wilson v. Seiter, 501 U.S. 294, 298
(1991); Young, 960 F.2d at 359-60. Specifically, a prisoner must show that the alleged
deprivation is "sufficiently serious" and that he has been deprived of the "minimal civilized
measure of life's necessities." Farmer, 511 U.S. at 834; see also Griffin v. Vaughn, 112
F.3d 703, 709 (3d Gir. 1997). A prisoner must also demonstrate that "he is incarcerated
under conditions posing a substantial risk of serious harm" and that prison officials
possessed a "sufficiently culpable state of mind" and demonstrated "deliberate indifference"
to his health or safety. Farmer, 511 U.S. at 834. However, only "extreme deprivations" are
sufficient to present aclaim for unconstitutional conditions of confinement. Hudson v.
McMillian, 503 U.S. 1,8-9 (1992); Fuentes v. Wagner, 206 F.3d 335, 344-45 (3d Gir. 2000).
Mere negligence or inadvertence will not satisfy the deliberate indifference standard and
cannot constitute a violation of the Eighth Amendment. See Estelle v. Gamble, 429 U.S.
97, 105-06 (1976); Young, 950 F.2d at 359-61.
In Franco-Calzada v. United States, 375 F. App'x 217 (3d Cir. 2010) (per curiam),
the inmate appealed the District Court's dismissal of his Bivens claim, wherein he alleged
that the ladder attached to his bunk was faulty, and caused him to fall and sustain injuries.
The Third Circuit dismissed the inmate's appeal as frivolous, finding that the inmate's
allegations did not establish that the defendants were deliberately indifferent to his serious
medical needs or to prison conditions pertaining to the use of an allegedly unsafe ladder in
his cell. Id. at p. 220. The Court stated, inter alia, that "Eighth Amendment liability requires
'more than ordinary lack of due care for the prisoner's interests or safety.'" Id. (citing Whitley
v. Albers, 475 U.S. 312, 319,106 S.Ct. 1078,89 LEd.2d 251 (1986)).
Additionally, this Court has recently concluded that "the failure to provide a ladder [in
a prison cell] does not amount to a constitutional violation" that would establish a cause of
action. Agostini v. Lowe, 2015 WL 4639556, at *7 (M.D. Pa. 2015) (citing Williams v.
Corizon, 2013 WL 4787223, at *15 (E.D. Pa. 2013) (finding no constitutional violation for a
failure to provide ladders in all bunk beds, as such an omission would be mere negligence
and not a constitutional violation); Pumphrey v. Smith, 2010 WL 4983675, at *4 (W.o. Pa.
2010) ("the lack of a ladder in a prison cell is not a deprivation that reduces Plaintiffs living
below 'the minimal civilized measure required.' Plaintiff could crawl into the bunk or utilize a
chair and still not be deprived of the minimal necessities of life.")).
This Court similarly concludes that Plaintiffs allegation that the prison Warden failed
to install ladders for access to the top bunks in the SHU at FCI-Schuylkill does not amount
to a cognizable constitutional violation. Moreover, Plaintiffs allegation that he sustained
"minor" abrasions on his knee and elbow, and endured "minor" pain, simply does not
demonstrate that he was incarcerated under conditions that posed a "substantial risk of
serious harm." Farmer, 511 U.S. at 834. Plaintiff has failed to allege facts sufficient for the
Court to conclude that his Eighth Amendment claim should proceed because he has failed
to allege: (1) that the deprivation alleged was objectively, sufficiently serious; and (2) that
the Defendant acted with deliberate indifference to an excessive risk to his health and/or
safety as required by Farmer. Consequently, the complaint will be dismissed.
Leave to Amend
When a complaint fails to present a prima facie case of liability, courts should
generally grant leave to amend before dismissing a complaint. See Grayson v. Mayview
State Hasp., 293 F.3d 103, 108 (3d Cir. 2002); Shane v. Fauver, 213 F.3d 113, 116-17 (3d
Cir. 2000). Specifically, the Third Circuit has admonished that when a complaint is subject
to dismissal for failure to state a claim, courts should liberally grant leave to amend "unless
such an amendment would be inequitable or futile." Phillips, 515 F.3d at 245 (citing Alston
v. Parker, 363 F.3d 229, 235 (3d Cir. 2004)). The federal rules allow for liberal
amendments in light of the "principle that the purpose of pleading is to facilitate a proper
decision on the merits." Fornan v. Davis, 371 U.S. 178, 182 (1962) (citations and internal
quotations omitted). In the matter sub judice, the Court concludes that Plaintiff is unable to
cure the deficiencies of the complaint, and affording him leave to amend would be futile.
Based on the foregoing, Defendant's motion to dismiss will be granted. An
appropriate Order shall issue.
United States District Judge
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