Brodie v. Fisher et al

Filing 22

MEMORANDUM (Order to follow as separate docket entry).Signed by Honorable Malachy E Mannion on 3/23/17. (Attachments: # 1 Unpublished Opinion(s))(bs)

2007 WL 4460617
Only the Westlaw citation is currently available.
United States District Court,
W.D. Pennsylvania.
James COLE, Plaintiff,
v.
Raymond SOBINA, Superintendent of SCI Somerset;
William Mailman, Unit Manager of General
Population; Brian Westley, General Population Unit
Counselor; David Hunter, Unit Manager of the Special
Needs Unit at SCI Somerset; and Rita Walker, Unit
Counselor of Special Needs Unit at SCI Somerset,
Defendants.
Civil Action No. 04-99J.
|
Dec. 19, 2007.
Attorneys and Law Firms
James Cole, Philadelphia, PA, pro se.
Robert A. Willig, Office of Attorney General, Pittsburgh, PA,
for Defendants.

(doc. no. 26) be denied. The Report and Recommendation
was served on the Plaintiff at the address presently listed on
the docket sheet. The parties were advised they were allowed
ten (10) days from the date of service to file written
objections to the report and recommendation. No objections
have been filed.

After de novo review of the pleadings and documents in the
case, together with the Report and Recommendation, the
following order is entered:

AND NOW, this 19th day of December, 2007;

IT IS HEREBY ORDERED that the Partial Motion to
Dismiss the Amended Complaint (doc. no. 23) is GRANTED
with respect to Plaintiff's ADA and RA claims against
Defendants in their individual capacities, as to Plaintiff's
claims against Defendant Sobina and DENIED as to
Defendants' assertion that Plaintiff's claims against
Defendants Hunter and Walker are barred by the two-year
limitations period.

IT IS FURTHER ORDERED that the Motion to Dismiss filed
by Defendants Mailman and Westley (doc. no. 26) be
DENIED.

MEMORANDUM ORDER

KIM R. GIBSON, District Judge.
*1 The above captioned case was initiated by the filing of a
Motion to Proceed In Forma Pauperis (doc. no. 1) on May 6,
2004. The case was referred to United States Magistrate Lisa
Pupo Lenihan for pretrial proceedings in accordance with the
Magistrate Judges Act, 28 U.S.C. § 636(b)(1), and Rules
72.1.3 and 72.1.4 of the Local Rules for Magistrate Judges.

The Magistrate Judge's Report and Recommendation (doc.
no. 33), filed on November 14, 2007, recommended that the
Partial Motion to Dismiss the Amended Complaint (doc. no.
23) be granted with respect to Plaintiff's ADA and RA claims
against Defendants in their individual capacities and as to
Plaintiff's claims against Defendant Sobina and that it be
denied as to Defendants' assertion that Plaintiff's claims
against Defendants Hunter and Walker are barred by the
two-year limitations period. It further recommended that the
Motion to Dismiss filed by Defendants Mailman and Westley

IT IS FURTHER ORDERED that the Report and
Recommendation (doc. no. 33) of Magistrate Judge Lenihan,
dated November 14, 2007, is adopted as the Opinion of the
Court.

MAGISTRATE JUDGE'S REPORT AND
RECOMMENDATION

LISA PUPO LENIHAN, United States Magistrate Judge.

I. RECOMMENDATION
It is respectfully recommended that the Partial Motion to
Dismiss the Amended Complaint (doc. no. 23) be granted
with respect to Plaintiff's ADA and RA claims against
Defendants in their individual capacities and also as to
Plaintiff's claims against Defendant Sobina. It should denied
as to Defendants' assertion that Plaintiff's claims against
Defendants Hunter and Walker are barred by the two-year
limitations period. It is further recommended that the Motion
to Dismiss filed by Defendants Mailman and Westley (doc.

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no. 26) be denied.

II. REPORT
On March 11, 2004, while he incarcerated at the State
Correctional Institution at Somerset James Cole (Plaintiff),
filed a civil rights complaint against the following defendants:
David Hunter, Unit Manager of the Special Needs Unit
(SNU) at SCI-Somerset; Raymond Sobina, Superintendent at
SCI-Somerset; and Rita Walker, Unit Counselor of the SNU
at Somerset in Civil Action No. 04-46J. On April 29, 2004,
Plaintiff filed another civil rights complaint at Civil Action
No. 04-99J against the following Defendants: Raymond
Sobina; William Mailman, Unit Manager of General
Population (GP) at SCI-Somerset; and Brian Wesley, Unit
Counselor of GP at SCI-Somerset. On January 4, 2005,
Plaintiff moved to consolidate these two cases (doc. no. 5).
On March 9, 2005, the Honorable Kim R. Gibson granted
Plaintiff's motion and consolidated the two cases at the above
captioned civil action number. The Order required Plaintiff to
file an amended complaint no later than April 15, 2005 (doc.
no. 6).

*2 Plaintiff filed an Amended Complaint on April 15, 2005
(doc. no. 8) wherein he named the following Defendants: the
Commonwealth of Pennsylvania, Department of Corrections
(DOC); the State Correctional Institution at Somerset;
Raymond Sobina; William Mailman; Brian Wesley and Rita
Walker. In his Amended Complaint Plaintiff alleges
violations of the American with Disabilities Act, 42 U.S.C. §
12101, et seq., (ADA) the Rehabilitation Act, 29 U.S.C. §
794(RA), and the Eighth Amendment of the United States
Constitution.

A. Plaintiff's Allegations
Plaintiff claims that he has been mentally disabled since 1994
and that he was housed in the Special Needs Unit (SNU) at
SCI-Somerset as a result of his mental illness. On March 21,
2002, Defendant Hunter assigned Plaintiff to “wheelchair
pusher” detail. When Plaintiff told Hunter that he was
medically restricted from performing that duty, Hunter told
Plaintiff that it was part of the programming suggested by
Defendant Walker. While performing this assigned detail, it
was beyond his strength and became unduly painful. For
several weeks he requested to be re-assigned to a job that did
not involve strenuous physical activity. On May 1, 2002,
Plaintiff again requested a different job assignment but was
told he was in prison and was required to follow orders. On
May 7, 2002, Plaintiff told Defendant Walker that he could
no longer endure the pain of pushing the wheelchair. He
received a misconduct for failing to obey orders.

Thereafter, Plaintiff walked to the medical department,
informed them as to what was happening and asked for pain
medication. The physician telephoned Defendant Walker and
informed her that Plaintiff was medically restricted to
performing non-sedentary work. On May 13, 2002, Plaintiff
received a disciplinary hearing where he was denied due
process, witnesses and documentary evidence. He appealed to
all levels but was denied and stripped of his staffing hearing
and pre-release.

In August, Plaintiff was removed from the SNU and placed in
General Population in J unit in a cell on the bottom tier. On
December 6, 2002, Defendant Mailman allegedly disagreed
about Plaintiff begging the Superintendent to evaluate what
was being done with Plaintiff and his prison property by
guards and general prison population on J Unit so he
disregarded Plaintiff's bottom tier restriction and re-assigned
him to the back of the unit on the top tier. From December to
January, Plaintiff became physically aggravated by going up
and down the stairs in order to access the lower level
facilities. He claims that Defendants Mailman, Sobina and
Westley knew of his medical restrictions but disregarded them
and did nothing to prevent a serious injury.

On January 21, 2003, Plaintiff lost all feeling in his left side
and fell down a flight of stairs. On January 27, 2003,
Mailman and Westley retaliated against Plaintiff by issuing
him a false misconduct accusing him of staging the fall. After
several months, Plaintiff proved that he was disabled and was
given bottom tier and bottom bunk status. He was not,
however, given appropriate housing or work assignments in
compliance with his medical restrictions.

*3 In November 2003, Plaintiff was denied admission back
into the special needs program unit until he was physically
assaulted by a J-Unit population inmate. Soon after, Plaintiff
filed an informal request and was placed back into the SNU.
On November 29, 2003, Plaintiff filed another informal
request to the Unit Manager Defendant Hunter requesting
access to prison work programs. No response was returned.
When Plaintiff confronted Hunter, he told Plaintiff that as
long as he was Unit Manager, Plaintiff would never be placed
into the housing work program.

B. Standard of Review
On May 21, 2007, Defendants Sobina, Mailman, Westley,
Hunter and Walker filed a Partial Motion to Dismiss pursuant
to Fed. R. Civ. Proc. 12(b)(6) (doc. no. 23). On June 11,
2007, Defendants Mailman and Westley filed a Motion to
Dismiss (doc. no. 26). Federal Rule of Civil Procedure

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12(b)(6) provides the procedures for motions to dismiss. In
this regard, when ruling on a motion to dismiss, the Court is
required to read the complaint in the light most favorable to
the plaintiff and all well-pleaded, material allegations in the
complaint must be taken as true. Estelle v. Gamble, 429 U.S.
97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). Notwithstanding, a
viable complaint must include “enough facts to state a claim
to relief that is plausible on its face.” Bell Atlantic Corp. v.
Twombly, --- U.S. ----, 127 S.Ct. 1964-65. In other words,
“factual allegations must be enough to raise a right to relief
above the speculative level.” Id. at 1955. It is not proper for
the court to assume that “the [plaintiff] can prove facts which
[he or she] has not alleged, or that the defendants have
violated the ... laws in ways that have not been alleged.”
Associated General Contractors of California, Inc. v.
California State Council of Carpenters, 459 U.S. 519, 526,
103 S.Ct. 897, 74 L.Ed.2d 723 (1983).

§ 794(a). Thus, the RA applies only to programs or activities
receiving federal financial assistance and does not apply to
individual defendants. See United States Dep't of Transp. v.
Paralyzed Veterans of America, 477 U.S. 597, 605, 106 S.Ct.
2705, 91 L.Ed.2d 494 (1986) (“Congress limited the scope of
§ 504 to those who actually “receive” federal financial
assistance because it sought to impose § 504 coverage as a
form of contractual cost of the recipient's agreement to accept
the federal funds.”). Plaintiff has not alleged that the
individual defendants receive federal financial assistance.
Therefore, Defendants' Partial Motion to Dismiss should be
granted as to Plaintiff's RA claims against the defendants in
their individual capacities. Emerson v. Thiel College, 296
F.3d 184, 190 (3d Cir.2002) (“Because the individual
defendants do not receive federal aid, Emerson does not state
a claim against them under the Rehabilitation Act.”). Plaintiff
should be able to proceed with his ADA and RA claims
against Defendants DOC and SCI-Somerset.

C. Defendants' Partial Motion to Dismiss

2. Statute of Limitations
Defendants next assert that the two-year statute of limitations
precludes Plaintiff's claims against Defendants Hunter and
Walker because they were not named until Plaintiff filed his
Amended Complaint on April 15, 2005. Defendants
overlooked the fact that Judge Gibson consolidated this case
with Civil Action No. 04-46J (doc. no. 6). In that action, filed
on March 11, 2004, Plaintiff clearly named both Hunter and
Walker. Plaintiff's allegations go back no farther than March
22, 2002. Such actions clearly are within the two-year
limitations period as Defendants Hunter and Walker were
named as Defendants in Civil Action No. 04-46J. Defendants
clearly were on notice that these two actions had been
consolidated notwithstanding the fact they never were served
with the Complaint in 04-46J. Judge Gibson clearly ordered
Plaintiff to file an amended complaint. Plaintiff did so on
April 15, 2005. Thus, there is no basis to dismiss Plaintiff's
claims against Defendants Hunter and Walker and
Defendants' Partial Motion to Dismiss should be denied in
this regard.

1. ADA and RA
Defendants first argue that Plaintiff's claims under the ADA
and RA should be dismissed against Defendants in their
individual capacity. In this regard, Plaintiff's Amended
Complaint raises claims under both the Americans with
Disabilities Act, 42 U.S.C. § 12101, et seq., (ADA) and the
Rehabilitation Act, 29 U.S.C. § 794(RA).

Title II of the ADA provides that “no qualified individual
with a disability shall, by reason of such disability, be
excluded from participation in or be denied the benefits of the
services, programs, or activities of a public entity, or be
subjected to discrimination by any such entity.” 42 U.S.C. §
12132. By its own language, the ADA applies only to “public
entities” which includes “any state or local government” or
“any department, agency, special purpose district, or other
instrumentality of a State or States or local government.” 42
U.S.C. §§ 12131(1)(A) & (B). Individual defendants cannot
be held liable under the ADA. Miller v. King, 384 F.3d 1248,
1277 (11th Cir.2004); Yeskey v. Commonwealth, 76
F.Supp.2d 572, 575 (M.D.Pa.1999). Accordingly, Defendants'
Partial Motion to Dismiss should be granted as to Plaintiff's
claims under Title II of the ADA against the Defendants in
their individual capacities.

*4 Similarly, the Rehabilitation Act provides that “[n]o
otherwise qualified individual with a disability in the United
States ... shall, solely by reason of her or his disability, be
excluded from the participation in, be denied the benefits of,
or be subjected to discrimination under any program or
activity receiving Federal financial assistance....” 29 U.S.C.

3. Lack of Personal Involvement by Defendant Sobina
Next, Defendants argue that Plaintiff has failed to adequately
allege personal involvement against Defendant Sobina,
Superintendent at SCI-Somerset. To establish personal
liability against a defendant in a section 1983 action, that
defendant must have personal involvement in the alleged
wrongs; liability cannot be predicated solely on the operation
of respondeat superior. Rizzo v. Goode, 423 U.S. 362, 96
S.Ct. 598, 46 L.Ed.2d 561 (1976). Accordingly, individual
liability can be imposed under section 1983 only if the state
actor played an “affirmative part” in the alleged misconduct.
Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir.1988);
Chinchello v. Fenton, 805 F.2d 126, 133 (3d Cir.1986).
Personal involvement by a defendant can be shown by

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alleging either personal direction or actual knowledge and
acquiescence in a subordinate's actions. Rode, 845 F.2d at
1207. “Allegations of participation or actual knowledge and
acquiescence, however, must be made with appropriate
particularity.” Id. See also Evancho v. Fisher, 423 F.3d 347,
353 (3d Cir.2005).

*5 Moreover, a supervising public official has no affirmative
constitutional duty to supervise and discipline so as to prevent
violations of constitutional rights by his or her subordinates.
Notwithstanding, when a supervising official knowingly
permits a continuing custom or policy that results in harm to
the plaintiff, 1983 liability may attach. Colburn v. Upper
Darby Township, 838 F.2d 663, 673 (3d Cir.1988), cert.
denied, 489 U.S. 1065, 109 S.Ct. 1338, 103 L.Ed.2d 808
(1989) (Colburn I). In order to maintain a claim for
supervisory liability, a plaintiff must show: 1) that the
supervising official personally participated in the activity; 2)
that the supervising official directed others to violate a
person's rights; or 3) that the supervising official had
knowledge of and acquiesced in a subordinates' violations.
See Robinson v. City of Pittsburgh, 120 F.3d 1286, 1293 (3d
Cir.1997); Baker v. Monroe Twp., 50 F.3d 1186, 1190-91 (3d
Cir.1995).

Plaintiff's only allegation against Sobina is that Sobina knew
that Plaintiff's medical restrictions posed a serious threat to
his health and well being. “A civil rights complaint is
adequate where it states the conduct, time, place, and persons
responsible.” Evancho v. Fisher, 423 F.3d at 353. As
Defendants point out, Plaintiff's Amended Complaint fails to
allege facts that, if proven, would show that Defendant Sobina
had any personal involvement in the alleged violations of
Plaintiff's constitutional rights. Defendant Sobina is not in
charge of individual housing and cell assignment. That task is
relegated to Unit and Housing Managers. It simply is
unrealistic to assume that Defendant Sobina would have first
hand knowledge of an individual inmate's medical
restrictions.

Moreover, Defendant Sobina's involement in reviewing
and/or affirming misconduct decisions grievances does not
show personal involvement. The filing of a grievance is not
sufficient to show the actual knowledge necessary for
personal involvement. Rode, 845 F.2d at 1208. Moreover,
mere concurrence in a prison administrative appeal process
does not implicate a constitutional concern. Garfield v. Davis,
566 F.Supp. 1069, 1074 (E.D.Pa.1983) (holding that
administrative review of prison disciplinary hearings is not
constitutionally guaranteed and, therefore, plaintiff's claims
with respect to the Program Review Committee's decision did
not rise to constitutional significance); Harmon v. Divirgilis,
2005 WL 387591 (E.D.Pa. Feb.16, 2005) (there is no

constitutional right to administrative review of prison
disciplinary proceedings); Croom v. Wagner, 2006 WL
2619794, *4 (E.D.Pa. Sept.11, 2006) (holding that neither the
filing of a grievance nor an appeal of a grievance is sufficient
to impose knowledge of any wrongdoing); Ramos v.
Pennsylvania Dept. of Corrections, 2006 WL 2129148, *2
(M.D.Pa. July 27, 2006) (holding that the review and denial
of the grievances and subsequent administrative appeal does
not establish personal involvement). As Plaintiff has failed to
adequately allege personal involvement against Defendant
Sobina, Defendants' Partial Motion to Dismiss should be
granted in this regard.

D. Motion to Dismiss by Defendants Mailman and Westley
*6 Defendants Mailman and Westley move for dismissal
based on the Plaintiff's alleged failure to have exhausted
available administrative remedies as required by the Prison
Litigation Reform Act (PLRA), Pub.L. No. 104-134, 110
Stat. 1321 (1996). In this regard, in the PLRA, Congress
amended the Civil Rights of Institutionalized Persons Act, 42
U.S.C.A. § 1997e, concerning suits by prisoners. Before the
amendments, prisoners challenging the conditions of their
confinement under 42 U.S.C. § 1983 were not required to
exhaust administrative remedies before filing suit. The PLRA
amended section 1997e(a), as follows, making exhaustion a
mandatory requirement.
(a) Applicability of administrative remedies
No action shall be brought with respect to prison conditions
under section 1983 of this title, or any other Federal law, by
a prisoner confined in any jail, prison, or other correctional
facility until such administrative remedies as are available are
exhausted.

42 U.S.C. § 1997e(a), as amended.

The United States Court of Appeals for the Third Circuit
analyzed the applicability of the exhaustion requirement in 42
U.S.C. § 1997e in Nyhuis v. Reno, 204 F.3d 65 (3d Cir.2000)
(Bivens action brought by a federal inmate) and Booth v.
Churner, 206 F.3d 289 (3d Cir.2000) (civil rights action
brought by a state prisoner). In each of these cases, the Court
of Appeals announced a bright line rule that inmate-plaintiffs
must exhaust all available administrative remedies before they
can file an action in federal court concerning prison
conditions. In so holding, the court specifically rejected the
notion that there is ever a futility exception to section
1997e(a)'s mandatory exhaustion requirement. Booth, 206
F.3d at 300; Nyhuis, 204 F.3d at 66. A unanimous Supreme

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Court affirmed the Court of Appeals' holding in Booth v.
Churner, 532 U.S. 731, 121 S.Ct. 1819, 149 L.Ed.2d 958
(2001) where the Court confirmed that in the PLRA Congress
mandated complete exhaustion of administrative remedies,
regardless of the relief offered through those administrative
procedures. In addition, in Porter v. Nussle, 534 U.S. 516,
122 S.Ct. 983, 152 L.Ed.2d 12 (2002), the Supreme Court
clarified that the PLRA's exhaustion requirement applies to all
inmate suits concerning prison life, whether they involve
general circumstances or specific episodes and whether they
allege excessive force or other conduct.

The administrative grievance procedure for Pennsylvania
inmates is codified in the Pennsylvania Department of
Corrections Policy Statement No. DC-ADM 804-1, entitled
“Consolidated Inmate Grievance Review System.” The
purpose of the grievance system is to insure that every inmate
confined in a Bureau of Correction facility has an avenue
through which prompt resolution of any problem which arises
during the course of confinement may be sought. DC-ADM
804 ¶ 1. The grievance system applies to all state correctional
institutions and provides three levels of review: 1) initial
review by the facility grievance coordinator; 2) appeal of
initial review to the superintendent or regional director; and
3) final appeal to the central office chief hearing examiner.
DC-ADM 804 ¶ VI. The administrative policy further
provides that, prior to utilizing the grievance system,
prisoners are required to attempt to resolve problems on an
informal basis through direct contact or by sending an inmate
request slip to the appropriate staff member. DC-ADM 804 ¶
V.

*7 In the instant action, Defendants assert that the Complaint
should be dismissed because Plaintiff failed to have exhausted
his administrative remedies in that he failed to have
completed the three-step grievance process provided for in
DC-ADM 804. This Court does not believe that Central
Office's failure to have reviewed Plaintiff's grievances is a
sufficient basis upon which to grant Defendants' Motion to
Dismiss.

Specifically, the documents attached to Defendants' Motion
reveal that Plaintiff's grievances were returned to him
unprocessed on several occasions for various reasons
including his inability to condense his grievance into a precise
statement and his failure to attach supporting documenation.
Plaintiff's situation is somewhat similar to the prisoner in
Camp v. Brennan, 219 F.3d 279, 281 (3d Cir.2000). In Camp,
an inmate filed a federal civil rights complaint alleging that
prison guards used excessive and unnecessary force when
they assaulted and stun gunned him while extracting him from
his cell. In his complaint, the inmate asserted that he
attempted to file a grievance after the incident but his

complaint was not processed because he was on grievance
restriction. In addition, the inmate claimed that many of the
correctional officers had told him that none of his grievances
would get to the Grievance Coordinator because they were
complaining about the officers' co-workers. For those reasons,
the inmate stated that he stopped trying to file a grievance
because no one would help him. In response to the defendants'
motion to dismiss his complaint, the inmate argued, inter alia,
that the circumstances that he had to deal with removed him
from the statutory reach of the exhaustion requirement in 42
U.S.C. § 1997e. The court of appeals agreed with this
position holding that “under Section 1997e(a) the prisoner
need only exhaust such administrative remedies ‘as are
available.’ ” Id. Camp, 219 F.3d at 281. The Court
alternatively found that, because the inmate's allegations had
been fully examined on the merits by the ultimate
administrative authority, it was not necessary that the inmate
“jump through any further administrative hoops to get the
same answer.” Id.

In the case at bar, the Defendants assert that Plaintiff did not
strictly comply with the three-step grievance procedure set
forth in DC-ADM 804. However, as the circuit court's
opinion in Camp makes clear, compliance with the mandatory
exhaustion requirement set forth in 42 U.S.C. § 1997e is not
dependent upon a prisoner seeking final review of a grievance
under DC-ADM 804. That requirement only applies when: 1)
the subject matter complained of is subject to review through
the grievance procedure set forth in DC-ADM 804; and 2) use
of the grievance system in DC-ADM 804 was “available” to
the prisoner.

Construing the facts in the light most favorable to plaintiff, as
this court is required to do in deciding a motion to dismiss, it
is recommended that this court conclude that the Defendants'
Motion to Dismiss should not be granted on the basis of their
assertion that Plaintiff failed to have exhausted his available
administrative remedies. The relevant documents suggest that
Plaintiff made significant efforts to seek review of his claims
through the DOC grievance procedure but that he was unable
to condense his version of events into a coherent statement
and was unable to provide adequate paperwork.
Notwithstanding, his claims were presented to all three levels.
Perhaps most importantly, Plaintiff claims to have mental
disabilities and was in fact housed in the SNU for a
significant amount of time. Thus, his failure to comply with
the rigid rules imposed in DOC grievance procedure
DC-ADM 804 may be attributable to his mental disability.
Accordingly, Defendants' Motion to Dismiss Plaintiff's claims
against Defendants Westley and Hunter on the basis of
Plaintiff's failure to have fully completed the exhaustion
requirement in 42 U.S.C. § 1997e should be denied.

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III. CONCLUSION
*8 It is respectfully recommended that the Partial Motion to
Dismiss the Amended Complaint (doc. no. 23) be granted
with respect to Plaintiff's ADA and RA claims against
Defendants in their individual capacities and as to Plaintiff's
claims against Defendant Sobina; it should denied as to
Defendants' assertion that Plaintiff's claims against
Defendants Hunter and Walker are barred by the two-year
limitations period. It is further recommended that the Motion
to Dismiss filed by Defendants Mailman and Westley (doc.
no. 26) be denied.

In accordance with the Magistrate Judges Act, 28 U.S.C. §
636(b) (1)(B) and (C), and Local Rule 72.1.4 B, the parties
are allowed ten (10) days from the date of service to file
written objections to this report. Any party opposing the
objections shall have ten (10) days from the date of service of
the objections to respond thereto. Failure to timely file
objections may constitute a waiver of any appellate rights.

All Citations
Not Reported in F.Supp.2d, 2007 WL 4460617

End of Document

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