Brown v. Black et al
MEMORANDUM (Order to follow as separate docket entry)Signed by Honorable James M. Munley on 9/27/17. (sm)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
TODD A. BROWN,
DUANE L. BLACK, et al.,
CIVIL ACTION NO. 3:16-cv-1886
Plaintiff Todd A. Brown (“Brown” or “Plaintiff”), at all times relevant a pretrial
detainee incarcerated at the Huntingdon County Jail, Pennsylvania, commenced this civil
rights action pursuant to 42 U.S.C. § 1983 on September 14, 2016. (Doc. 1; Doc. 22-1).
Brown names the following individuals as defendants: Warden Duane L. Black
(“Black”), Lieutenant Brett E. Rhone (“Rhone”), and Lieutenant Daniel R. Weikert. (Id.)
Presently pending is Defendants’ Motion (Doc. 22) to Dismiss the complaint
pursuant to Federal Rule of Civil Procedure 12(b)(6). For the reasons that follow, the
motion will be granted in part and denied in part. Also pending is Plaintiff’s motion
(Doc. 30) for appointment of counsel. The counsel motion will be denied.
Motion to Dismiss
Standard of Review
Rule 12(b)(6) provides for the dismissal of complaints that fail to state a claim
upon which relief can be granted. FED. R. CIV. P. 12(b)(6). When ruling on a motion to
dismiss under Rule 12(b)(6), the court must “accept as true all [factual] allegations in the
complaint and all reasonable inferences that can 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)). Although the court
is generally limited in its review to the facts contained in the complaint, it “may also
consider matters of public record, orders, exhibits attached to the complaint and items
appearing in the record of the case.” Oshiver v. Levin, Fishbein, Sedran & Berman, 38
F.3d 1380, 1384 n. 2 (3d Cir. 1994); see also In re Burlington Coat Factory Sec. Litig.,
114 F.3d 1410, 1426 (3d Cir. 1997).
Federal notice and pleading rules require the complaint to provide “the defendant
notice of what the . . . claim is and the grounds upon which it rests.” Phillips v. Cty. of
Allegheny, 515 F.3d 224, 232 (3d Cir. 2008) (quoting Bell Atl. Corp. v. Twombly, 550
U.S. 544, 555 (2007)). To test the sufficiency of the complaint in the face of a Rule
12(b)(6) motion, the court must conduct a three-step inquiry. See Santiago v. Warminster
Twp., 629 F.3d 121, 130-31 (3d Cir. 2010). In the first step, “the court must ‘tak[e] note
of the elements a plaintiff must plead to state a claim.’” Id. (quoting Ashcroft v. Iqbal,
556 U.S. 662, 675 (2009)). Next, the factual and legal elements of a claim should be
separated; well-pleaded facts must be accepted as true, while mere legal conclusions may
be disregarded. Id.; see also Fowler v. UPMC Shadyside, 578 F.3d 203, 210–11 (3d Cir.
2009). Once the well-pleaded factual allegations have been isolated, the court must
determine whether they are sufficient to show a “plausible claim for relief.” Iqbal,
556U.S. at 679 (citing Twombly, 550 U.S. at 556); Twombly, 550 U.S. at 555 (requiring
plaintiffs to allege facts sufficient to “raise a right to relief above the speculative level”).
A claim “has facial plausibility when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Iqbal, 556 U.S. at 678.
Allegations of the Complaint
Brown alleges that while he was housed in a holding cell between the dates of
June 18, 2016, and June 21, 2016, Defendant Black “neglected [his] well-being” when he
allowed Brown to bang his head against the cell wall and there was “blood everywhere.”
(Doc. 1, p. 4, ¶ 4). Defendant Black allegedly stated that he did not care if Brown hurt
himself. (Doc. 1, “Statement of Claim” Section, p. 2, ¶ 1). Black allegedly gave orders
that Brown “receive nothing” and, thereafter, between the dates of June 18, 2016, and
July 5, 2016, “neglected [his] basic elements of life” in refusing him toilet paper, razors,
soap, shampoo, toothpaste, a toothbrush and a working toilet, denied him a cell with
proper ventilation, and denied him adequate cell lighting. (Id. at Statement of Claim”
Section, p. 2, ¶ 1pp. 4, 5, ¶¶5, 6, 8). He also alleges that Defendants Black and Weikert
deprived him of recreation for a sixteen day period. (Id. at “Statement of Claim” Section,
p. 3, ¶ 2; p. 5, ¶ 7).
He further alleges that on July 11, 2016, Defendant Rhone retaliated against him
by assaulting him. (Id. at 11). Also, on July 26, 2016, Defendant Rhone failed to pass
along information to Defendant Weikert and other officers about an “alleged altercation
about to happen.” (Id. at 10). Brown was allowed to go to recreation and, as a result, he
got into a fist fight with two other inmates. (Id.)
Section 1983 offers private citizens a cause of action for violations of federal law
by state officials. See 42 U.S.C. § 1983. The statute provides, in pertinent part, as
Every person who, under color of any statute, ordinance, regulation,
custom, or usage, of any State or Territory or the District of Columbia,
subjects, or causes to be subjected, any citizen of the United States or other
person within the jurisdiction thereof to the deprivation of any rights,
privileges, or immunities secured by the Constitution and laws, shall be
liable to the party injured in an action at law, suit in equity, or other proper
proceeding for redress. . . .
Id.; see also Gonzaga Univ. v. Doe, 536 U.S. 273, 284-85 (2002); Kneipp v. Tedder, 95
F.3d 1199, 1204 (3d Cir. 1996). Accordingly, to establish a claim for relief under
Bivens, a plaintiff must demonstrate: (1) that the conduct was committed by a federal
actor, and (2) that conduct resulted in the deprivation of a right secured by the
Constitution or federal laws of the United States. See Brown, 250 F.3d at 801.
Conditions of Confinement
Pretrial detainees are protected from “punishment” by the Due Process Clause of
the Fourteenth Amendment. Bell v. Wolfish, 441 U.S. 520, 535 (1979). To determine
whether conditions of confinement amount to “punishment”, courts “ask, first, whether
any legitimate purposes are served by the[ ] conditions, and second, whether the[ ]
conditions are rationally related to these purposes.” Hubbard v. Taylor, 538 F.3d 229,
232 (3d Cir. 2008) (“Hubbard II”) (citing Union Cnty. Jail Inmates v. Di Buono, 713 F.2d
984, 992 (3d Cir. 1983; see also Stevenson v. Carroll, 495 F.3d 62, 67 (3d Cir. 2007).
Brown alleges that Defendant Black gave orders that he “receive nothing” and
stated that he did not care if Brown hurt himself. (Doc. 1, “Statement of Claim” Section,
p. 2, ¶ 1). Defendant Black allegedly neglected his well-being by not helping him when
he was banging his head against the wall of his cell and specifically stated to Officer Byer
“I don’t care he’s hurting himself. Put him back in the holden [sic] cell.” (Id. at p.4, ¶ 4).
Brown further alleges that, Defendant Black stated to him the he would “get nothing” and
then, over the course of approximately fifteen days, proceeded to deprive him of basic
necessities, including water, a working toilet, access to basic hygiene products such as
toilet paper, soap, shampoo, toothpaste and a toothbrush, proper air ventilation and
adequate cell lighting. (Id. pp. 4, 5, ¶¶ 5-7). He also indicates that he was completely
deprived of exercise by Defendants Black and Weikert for approximately sixteen days.
(Id. at “Statement of Claim” Section, p. 3, ¶ 2; p. 5, ¶ 7).
Brown sufficiently alleges a Fourteenth Amendment conditions of confinement in
that he indicates that he was subject to these conditions for no legitimate penological
purpose. Defendants’ motion to dismiss these claims will be denied.
First Amendment Retaliation
Brown claims that Defendant Rhone subjected him to retaliation by assaulting
him. Retaliating against a prisoner for the exercise of his constitutional rights is
unconstitutional. See, e.g., Mitchell v. Horn, 318 F.3d 523, 529–31 (3d Cir. 2003);
Rauser v. Horn, 241 F.3d 330, 333–34 (3d Cir. 2001); Allah v. Seiverling, 229 F.3d 220,
224–26 (3d Cir. 2000). To establish a prima facie retaliation claim under 42 U.S.C. §
1983, a plaintiff “must prove that: (1) his conduct was constitutionally protected; (2) he
suffered an adverse action at the hands of prison officials; and (3) his constitutionally
protected conduct was a substantial or motivating factor in the decision to discipline
him.” Watson v. Rozum, 834 F.3d 417, 422 (3d Cir. 2016). With respect to the third
element, “once a prisoner demonstrates that his exercise of a constitutional right was a
substantial or motivating factor in the challenged decision, the prison officials may still
prevail by proving that they would have made the same decision absent the protected
conduct for reasons reasonably related to a legitimate penological interest.” Rauser , 241
F.3d at 334. This is a “deferential standard” meant to take into account “that the task of
prison administration is difficult, and that courts should afford deference to decisions
made by prison officials, who possess the necessary expertise.” Id.
Brown fails to indicate that the alleged assault by Defendant Rhone was in
retaliation for involvement in constitutionally protected conduct. As such, Brown fails to
state a First Amendment retaliation claim.
Failure to Protect
The Cruel and Unusual Punishment Clause of the Eighth Amendment imposes on
prison officials “a duty to protect prisoners from violence at the hands of other
prisoners.” Farmer v. Brennan, 511 U.S. 825, 833 (1994). As noted surpa, under the
Constitution’s guarantees of due process, an unsentenced inmate ‘is entitled[,] at a
minimum, to no less protection than a sentenced inmate is entitled to under the Eighth
Amendment.’ ” Bistrian v. Levi, 696 F.3d 352, 366-67 (quoting Fuentes v. Wagner, 206
F.3d 335, 341-42 (3d Cir. 2000)). Brown, a not yet convicted inmate, had a clearly
established constitutional right to have prison officials protect him from inmate violence.
However, not “every injury suffered by one prisoner at the hands of another ... translates
into constitutional liability for prison officials responsible for the victim’s safety.”
Farmer, 511 U.S. at 834. To state a claim for damages against a prison official for failure
to protect from inmate violence, an inmate must plead facts that show (1) he was
incarcerated under conditions posing a substantial risk of serious harm, (2) the official
was deliberately indifferent to that substantial risk to his health and safety, and (3) the
official’s deliberate indifference caused him harm. Id. at 834; Hamilton v. Leavy, 117
F.3d 742, 746 (3d Cir.1997).
Brown’s allegations are woefully inadequate. First the complaint is devoid of any
allegations that, in this instance, he was subject to conditions posing a substantial risk of
serious harm. Second, he fails to allege that Defendants Rhone and Weikert exhibited
deliberate indifference to a substantial risk to his safety. Deliberate indifference in this
context is a subjective standard: “the prison official-defendant must actually have known
or been aware of the excessive risk to inmate safety.” Beers–Capitol v. Whetzel, 256
F.3d 120, 125 (3d Cir. 2001). It is not sufficient that the official should have known of
the risk. Id. at 133. Brown’s allegations that Defendant Rhone “on 7-26-16 sent Officer
Spencer home after c/o Wise told Lieutent [sic] Rhone about an alleged altercation about
to happen. Lieutent [sic] failed to pass down the alleged statement to the other officer’s
working? Three officers that day worked. And Lieutent [sic] Weikert” are completely
speculative. They fall far short of establishing actual knowledge of an excessive risk to
safety and do not set forth sufficient circumstantial evidence such that an inference of
deliberate indifference could be drawn. Farmer, 511 U.S. at 842. Lastly, Brown has not
alleged adequate facts to suggest that he “got into a fist fight with two inmates” during
recreation as a result of conduct of either Defendant Rhone or Weikert. Defendants’
motion to dismiss the failure to protect claim will be granted.
Leave to Amend
The Court recognizes that the sufficiency of this pro se pleading must be
construed liberally in favor of Brown, even after Iqbal. See Erickson v. Pardus, 551 U.S.
89 (2007). 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.” Foman v. Davis,
371 U.S. 178, 182 (1962) (citations and internal quotations omitted). Consequently, a
complaint should not be dismissed with prejudice for failure to state a claim without
granting 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). An
amendment is considered futile “if the [it] will not cure [any] deficiency in the original
complaint or if the amended complaint cannot withstand a motion to dismiss.” Jablonski
v. Pan American World Airways, Inc., 863 F.2d 289, 292 (3d Cir. 1988). Given the facts
alleged with regard to the Retaliation and Failure to Protect claims, it is clear that
allowing Brown to amend would be futile as he is unable to cure the deficiencies from
which these claims suffer.
Motion to Appoint Counsel
It is well-established that there is no constitutional or statutory right to counsel in a
civil case. Montgomery v. Pinchak, 294 F.3d 492, 498 (3d Cir. 2002); Parham v.
Johnson, 126 F.3d 454, 456–57 (3d Cir. 1997); Tabron v. Grace, 6 F.3d 147, 153-54 (3d
Cir. 1993). Moreover, district courts have broad discretion to determine whether to
appoint counsel under 28 U.S.C. § 1915. If the Court determines that a claim has
“arguable merit in fact and law,” it then undertakes consideration of the litigant’s ability
to proceed pro se in light of a number of additional non-exhaustive factors. Tabron 6
F.3d at 155. Those factors include the following: (1) the plaintiff’s ability to present his
or her case; (2) the complexity of the particular legal issues; (3) the degree to which
factual investigation is required and the ability of the plaintiff to pursue such
investigation; (4) the amount a case is likely to turn on credibility determinations; (5)
whether the case will require testimony from expert witnesses; and (6) the plaintiff’s
ability to retain and afford counsel on his or her own behalf. Montgomery v. Pinchak,
294 F.3d 492, 499 (3d Cir. 2002); Parham v. Johnson, 126 F.3d 454, 457–58 (3d Cir.
1997); Tabron, 6 F.3d at 155-57 (listing factors relevant to request for counsel).
It is clear that Brown’s conditions of confinement claim has an arguable basis in
law and fact. It is also apparent that Brown is capable of properly and forcefully
prosecuting his claims, and that discovery neither implicates complex legal or factual
issues, nor requires factual investigation or the testimony of expert witnesses.
Consequently, the motion will be denied at this stage of the proceedings. If further
proceedings demonstrate the need for counsel, the matter will be reconsidered either sua
sponte or upon motion of Brown.
Based on the foregoing, Defendants’ motion (Doc. 22) to dismiss will granted in
part and denied in part. Plaintiff’s motion (Doc. 30) for appointment of counsel will be
An appropriate Order will enter.
BY THE COURT:
s/James M. Munley
JUDGE JAMES M. MUNLEY
United States District Court
September 27, 2017
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