THOMPSON v. CAVER et al

Filing 21

MEMORANDUM (Order to follow as separate docket entry).Signed by Honorable A. Richard Caputo on 5/23/17. (jam)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
NYRAN DALE THOMPSON,
Plaintiff
v.
DEPUTY WARDEN CARVER, et al.,
Defendants

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CIVIL NO. 3:CV-16-1529
(Judge Caputo)

MEMORANDUM
I.

Introduction
Mr. Thompson, a former inmate, proceeds pro se and in forma pauperis in this action

concerning events that transpired at the Monroe County Correctional Facility (MCCF) in
Stroudsburg, Pennsylvania.1 Mr. Thompson filed this action in July 2014. He names the
following individuals as defendants: Deputy Warden Caver; Lt. Joynes; Jason Labar; several
John Doe Corrections Officers (CO); John Doe Intake Officer; John Doe Pennsylvania State
Police (PSP) Trooper; the MCCF; the Monroe County District Attorney’s Office; and Jason
Labar of the Monroe County Public Defenders Office. (ECF No. 1, Compl.)
As Mr. Thompson is proceeding in forma pauperis in this action, the Complaint is before
us for screening pursuant to 28 U.S.C. § 1915. For the following reasons, the Complaint will
be dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii). However, Mr. Thompson will be
permitted to file an amended complaint exclusively as to his failure to protect claim.

1

Mr. Thompson initiated this action while incarcerated. He is no longer incarcerated and
lives in Binghamton, NY.

II.

Standard of Review
The Court is required to screen Mr. Thompson’s Complaint pursuant to 28 U.S.C. §

1915A(a) and 28 U.S.C. § 1915(e)(2)(B)(ii). The Court must dismiss a complaint, or any
portion thereof, if the prisoner has raised claims that are legally frivolous, malicious, fail to
state a claim upon which relief may be granted, or that seek monetary relief from a defendant
who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2); 28 U.S.C. § 1915(e)(2)(B)(i)(iii).
The legal standard for dismissing a complaint for failure to state a claim under §
1915(e)(2)(B)(ii) is the same as that for dismissing a complaint pursuant to a motion filed
under Rule 12(b)(6) of the Federal Rules of Civil Procedure. Allah v. Seiverling, 229 F.3d 220,
223 (3d Cir. 2000). Under Rule 12(b)(6), we must “take as true all the factual allegations of
the [complaint] and the reasonable inferences that can be drawn from them, but we disregard
legal conclusions and recitals of the elements of a cause of action, supported by mere
conclusory statements.”

Santiago v. Warminster Twp., 629 F.3d 121, 128 (3d Cir.

2010)(quotation marks omitted and citation omitted).
“The test in reviewing a motion to dismiss for failure to state a claim under Rule 12(b)(6)
is whether, under any ‘plausible' reading of the pleadings, the plaintiff would be entitled to
relief." Guidotti v. Legal Helpers Debt Resolution, L.L.C., 716 F.3d 764 (3d Cir. 2013) (citing
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 1974, 167 L.Ed.2d 929 (2007)).
To satisfy this standard, a complaint need only contain “a short and plain statement of the
claim,” Fed. R. Civ. P. 8(a)(2), and detailed factual allegations are not required, Twombly, 550
U.S. at 555, 127 S.Ct. at 1964. Nonetheless, a complaint has to plead “enough facts to state
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a claim to relief that is plausible on its face.” Id. at 570, 127 S.Ct. at 1974. “The plausibility
standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility
that a defendant acted unlawfully.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937,
1949, 173 L.Ed.2d 868 (2009)(quoting Twombly, 550 U.S. at 556, 127 S.Ct. at 1965).
“[L]abels and conclusions” are not enough, Twombly, 550 U.S. at 555, 127 S.Ct. at 1964-65,
and a court “‘is not bound to accept as true a legal conclusion couched as a factual
allegation.’” Id., 127 S.Ct. at 1965 (quoted case omitted).
A complaint filed by a pro se plaintiff must be liberally construed and “held ‘to less
stringent standards than formal pleadings drafted by lawyers.’” Fantone v. Latini, 780 F.3d
184 (3d Cir. 2015)(citing Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 596, 30
L.Ed.2d 652 (1972)); see also Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 2200, 167
L.Ed.2d 1081 (2007). Yet, even a pro se plaintiff “must allege sufficient facts in their
complaints to support a claim.” Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 245 (3d Cir.
2013) (citation omitted). A plaintiff is to be granted leave to file a curative amended complaint
even when he does not seek leave to amend, unless amendment would be inequitable or
futile. See Estate of Lagano v. Bergen Cnty. Prosecutor’s Office, 769 F.3d 850, 861 (3d Cir.
2014).

III.

Background
A.

Procedural History

This matter was transferred from the United States District Court for the Eastern District
of Pennsylvania to this Court as the MCCF is located in this district. Upon initially screening
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the matter, this Court dismissed the action on the basis of Mr. Thompson’s apparent failure
to pay the requite initial partial filing fee.

(ECF No. 18.)

Mr. Thompson then sought

reconsideration of that order and provided evidence of his payment of the filing fee to the
Eastern District of Pennsylvania. The Court then reopened the matter.

B.

Allegations of the Complaint

Mr. Thompson alleges that on April 11, 2014, at approximately 9:00 p.m., while housed
at the MCCF, prison officials placed him in a cell with another inmate who was a “known
sexual predator.” He claims prison officials knew this inmate was “to be separated from
general confindment (sic) inmates in the intake area”. (ECF No. 1, p. 4.) Mr. Thompson “was
approached in a sexually (sic) manner and touched on [his] private part by [the] another
inmate”. (Id., p. 10.) He then “informed the officer on duty numerous times,” and was advised
he must “stay in this room with a pervert till morning.” (Id.)
Mr. Thompson claims when the “Officer John Does” removed him from the cell, he was
given a grievance form which was ultimately lost by prison officials. (Id., p. 4.) Later Mr.
Thompson was interviewed by a John Doe PSP Trooper concerning the matter. (Id.) He was
advised that “this sexual predator would be prosecuted.” (Id.) Suffering from physical and
mental strain following the event, Mr. Thompson asked Lt. Joynes to be placed in a single cell.
(Id.) Lt. Joynes replied that he would have to request protective custody in order to receive
a single cell. (Id.) Mr. Thompson grieved the issue of his single cell request to Deputy
Warden Carver who arranged for his placement in a single cell. (Id., p. 5.)

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Mr. Thompson claims he was sexually harassed and physically violated by the other
inmate. (Id.) He claims he “could have been raped” and “could have been beaten” by his
cellmate. (Id., p. 10.) He seeks monetary relief for his physical and psychological harm. (Id.)

IV.

Discussion
A.

Failure to State a Claim

To successfully state a § 1983 claim, a plaintiff must allege: (1) the conduct complained
of was committed by a person acting under color of state law; and (2) the conduct complained
of deprived the plaintiff of rights, privileges, or immunities secured by the laws or the
Constitution of the United States. Rehberg v. Paulk,566 U.S. 356, 361, 132 S.Ct. 1497, 1501,
182 L.Ed.2d 593 (2012); Mack v. Warden Loretto FCI, 839 F.3d 286, 302 (3d Cir. 2016).
The Eighth Amendment requires a prison official to “take reasonable measures to
protect prisoners from violence at the hands of other prisoners.” Farmer v. Brennan, 511 U.S.
825, 833, 114 S.Ct. 1970, 1976, 128 L.Ed.2d 811 (1994). “In order to succeed on a failure to
protect claim under § 1983, an inmate must demonstrate that corrections officers acted with
deliberate indifference to a substantial risk of serious harm.” Nifas v. Coleman, 528 F. App’x
132, 135 (3d Cir. 2013) (citing Beers-Capitol v. Whetzel, 256 F.3d 120, 133 (3d Cir. 2001)).
Similarly, “a pretrial detainee presenting a failure-to-protect claim must plead that the prison
official acted with deliberate indifference to the detainee's health or safety.” Burton v. Kindle,
401 Fed.Appx. 635, 638 (3d Cir. 2010) (per curiam). “Deliberate indifference” is a subjective
standard in that “the prison official-defendant must actually have known or been aware of the
excessive risk to inmate safety.” Bistrian v. Levi, 696 F.3d 352, 367 (3d Cir. 2012) (citing
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Beers-Capitol, 256 F.3d at 125).

Thus, a plaintiff must show that the defendant was

subjectively aware of the risk of harm to the plaintiff’s health or safety, and disregarded it.
See, e.g. Farmer, 511 U.S. at 837, 114 S.Ct. at 1979; Natale v. Camden Cty. Corr. Facility,
318 F.3d 575, 582 (3d Cir. 2003).
To establish liability for the deprivation of a constitutional right, an individual government
defendant must have personal involvement in the alleged wrongs; liability cannot be
predicated based on the unconstitutional conduct of their subordinates under a theory of
respondeat superior. Iqbal, 556 U.S. at 676, 129 S.Ct. at 1948; Santiago v. Warminster Twp.,
629 F.3d 121, 130 (3d Cir. 2010). “It is uncontested that a government official is liable only
for his or her own conduct and accordingly must have had some sort of personal involvement
in the alleged unconstitutional conduct.” Argueta v. U.S. I.C.E., 643 F.3d 60, 71-72 (3d Cir.
2011). This personal involvement can be shown where a defendant personally directs the
wrongs, or has actual knowledge of the wrongs and acquiesces in them. See Rode v.
Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988); A.M. ex rel. J.M.K. v. Luzerne Cnty.
Juvenile Det. Ctr., 372 F.3d 572, 586 (3d Cir. 2004) (noting that “a supervisor may be
personally liable under § 1983 if he or she participated in violating the plaintiff's rights, directed
others to violate them, or, as the person in charge, had knowledge of and acquiesced in his
subordinates' violations”). A defendant “cannot be held responsible for a constitutional
violation which he or she neither participated in nor approved.” C.H. ex rel. Z.H. v. Oliva, 226
F.3d 198, 201-202 (3d Cir. 2000).
Here, Mr. Thompson asserts an Eighth Amendment failure-to-protect claim based upon
prison officials’ deliberate indifference to a substantial threat to his safety when he was placed
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in a cell with a known sexual predator who ultimately sexually harassed and touched him.
However, he fails to identify any of the Defendants’ personal involvement in the decision to
place him in the cell with the known sexual predator or that they knew he was exposed to a
substantial risk of physical harm if celled with that particular inmate. Mr. Thompson clearly
states that his contact with Deputy Warden Caver, Lt. Joynes and the John Doe Corrections
Officers occurred after he was removed from the cell. The same is true for his contact with
the John Doe PSP Trooper. Furthermore, aside from naming the Monroe County District
Attorney and Public Defender Jason Labar as defendants, Mr. Thompson fails to even mention
them in his statement of his claim.2 Thus, he fails to state an failure-to-protect claim, or the
personal involvement, of any of the named Defendants in any constitutional violation.
Accordingly, the Complaint is subject to dismissal pursuant to 28 U.S.C. § 1915(e)(2)(b)(ii).

B.

Leave to File an Amended Complaint

“[I]f a complaint is vulnerable to [Rule] 12(b)(6) dismissal, a district court must permit
a curative amendment, unless an amendment would be inequitable or futile.” Phillips v. Cty.
of Allegheny, 515 F.3d 224, 236 (3d Cir. 2008). In this instance, it is likely that Mr. Thompson
will be able to cure the identified deficiencies as to his failure-to-protect claim by amendment.
Thus, Mr. Thompson will be granted twenty-one days to file an amended complaint. If Mr.
Thompson decides to file an amended complaint, he is advised he must clearly designate on
2

To the extend Mr. Thompson seeks to bring a claim against the John Doe PSP Trooper,
the Monroe County District Attorney’s Office, or Public Defender Labar based on their failure to
prosecute the inmate who sexually harassed and touched him, he fails to state a cognizable § 1983
claim. “[T]here is no constitutional right to the investigation or prosecution of another.” Sanders v.
Downs, 420 F. App’x 175, 180 (3d Cir. 2011) (per curiam).

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the face of the document that it is the “Amended Complaint,” it must bear the docket number
assigned to this case, and it must be retyped or legibly rewritten in its entirety, preferably on
the court-approved form. In addition, Plaintiff is cautioned that in his amended complaint, he
may not change the nature of this suit by adding new or unrelated claims from those set forth
in his original Complaint. Also, the "amended complaint must be complete in all respects. It
must be a new pleading which stands by itself as an adequate complaint without reference to
the complaint already filed." Young v. Keohane, 809 F. Supp. 1185, 1198 (M.D. Pa. 1992).
Mr. Thompson is advised that any amended complaint he may file supersedes the original
complaint and must be “retyped or reprinted so that it will be complete in itself including
exhibits.” M.D. Pa. LR 15.1; see also W. Run Student Hous. Assocs. V. Huntingdon Nat’l
Bank, 712 F.3d 165, 171 (3d Cir. 2013). Consequently, all causes of action alleged in the
original complaint which were not dismissed with prejudice and are not alleged in the amended
complaint are waived.
Mr. Thompson is also advised that his amended complaint must be concise and direct.
See Fed. R. Civ. P. 8(d). Each allegation must be set forth in an individually numbered
paragraphs in short, concise and simple statements. Id. Mr. Thompson must state what each
named defendant did that led to the deprivation of his constitutional or other federal rights.
Iqbal, 556 U.S. at 676, 129 S.Ct. at 1948. He may name John Does as defendants, but the
case may only continue if a specific person is named against whom a valid claim has been
alleged. He must also specify the relief he seeks with regard to each claim. Mr. Thompson’s
failure to file an appropriate amended complaint within the required time will result in his
lawsuit being dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim on
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which relief may be granted. Mr. Thompson is also cautioned that illegible submissions will
be returned to him without consideration.

VI.

Conclusion
For the reasons set forth above, Mr. Thompson’s claims against all named defendants

will be dismissed for failure to state a claim upon which relief may be granted. His failure-toprotect claim against all defendants is dismissed.

If Mr. Thompson files an amended

complaint it must be limited to his failure-to-protect claim.
An appropriate order follows.

/s/ A. Richard Caputo
A. RICHARD CAPUTO
United States District Judge
DATE: May 23, 2017

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