Ortiz v. Butts et al
Filing
34
MEMORANDUM (Order to follow as separate docket entry) re Defendants' motion to dismiss the complaint 18 . Signed by Honorable Matthew W. Brann on 3/2/2016. (km)
IN THE UNITED STATES DISTRICT COURT
FOR THE
MIDDLE DISTRICT OF PENNSYLVANIA
SOTERO ORTIZ,
Plaintiff
v.
CHARLES BUTTS,
ET AL.,
Defendants
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CIVIL NO. 4:CV-15-149
(Judge Brann)
MEMORANDUM
March 2, 2016
Background
This pro se civil rights action was filed by Sotero Ortiz, an inmate presently
confined at the State Correctional Institution, Frackville, Pennsylvania (SCIFrackville). Named as Defendants are two officials at Plaintiff’s prior place of
confinement, the Mahanoy State Correctional Institution, Frackville, Pennsylvania
(SCI-Mahanoy), Lieutenant Charles Butts and Correctional Officer Joseph Biscoe.
Plaintiff states that while held in the SCI-Mahanoy Restricted Housing Unit
(RHU) on August 23, 2013 he was issued a misconduct by Correctional Officer
Peters (a non-defendant) which charged him with assaulting fellow Inmate
Boulware with feces in the shower and refusing orders from Peters to cease his
conduct. See Doc. 1, ¶ IV(3). Ortiz was subsequently found guilty of the charge
and sentenced to a term of disciplinary confinement.
On September 13, 2013, Plaintiff admits that he showed 24 pain pills to
Correctional Officer Mayernick (a non-defendant), told him that he was feeling
suicidal and would take an overdose if he didn’t receive medical attention. See id.
at (16). As a result of those actions, Plaintiff was taken to the RHU triage room
where he met with Defendant Biscoe, Doctor Boyce, and Nurse Kim. It was
determined that Ortiz should be placed on suicide watch and he was placed in a
Psychiatric Observation Cell (POC).
After spending a weekend in the POC, Plaintiff was taken off suicide watch
by Doctor Anher on September 16, 2013 and returned to the RHU. However, upon
his return Ortiz was immediately placed in an RHU “hard” cell without any type of
due process by Defendant Butts and two other correctional officers.1 Id. at (20).
Plaintiff describes the hard cell as having a greater level of restraint and fewer
privileges; and a double wicket which means that its occupants receive smaller
meal trays; no desk or attached seat. Moreover, the particular hard cell assigned to
Plaintiff had a strong odor of feces and was filthy.
Plaintiff asserts that Butts denied his request to be immediately provided
Defendants describe this RHU cell as being a double wicket handicapped cell.
See Doc. 22, p. 6.
1
with cleaning supplies and was told that he would have to wait until Saturday, the
regular cell cleaning day. The following day it is alleged that Defendant Biscoe
also similarly denied a request by Ortiz for cleaning supplies. On that same day,
the Complaint contends that Biscoe and Butts separately told Plaintiff that his hard
cell placement was a consequence of the August 23, 2013 and September 13, 2013
incidents. See id. at (24-25).
Plaintiff next contends that after being in the hard cell for five days he began
suffering intense pain in his back and left leg because the absence of a seat in the
cell and discovered that former occupants of the cell had “jammed feces in the
cracks of both windows of the inside of my cell door where the caulking would
normally be.” Id. at (26).
The following day Plaintiff was provided with cleaning supplies, however,
he admittedly made no effort to clean up the feces infected area “due to the obvious
health and safety risk.” Id. at (27). On September 23, 2013, Plaintiff states that he
sent requests to both Defendants asking that his cell be power washed since regular
cleaning supplies would be insufficient; he also advised them that the absence of a
seat in his cell was causing his medical condition to worsen. Oritz claims that
while showering on September 25, 2013 he discovered three “forms of unidentified
growth” on his abdomen which he attributes to the unsanitary condition of his cell.
Id. at (29). The growths were diagnosed by the prison medical staff as being an
infection the following day and Ortiz was prescribed antibiotics. Plaintiff was also
treated for severe pain in his lower back and left leg.
Ortiz was removed from the hard cell on September 30, 2013. A few days
later he was placed on lower tier,/bottom bunk status and was prescribed a cane.
The Complaint concludes that Defendants failed to protect Plaintiff’s safety
by improperly placing him in a hard cell for punitive reasons without providing
any type of due process and ignored his requests to be provided a seat and cleaning
of his hard cell. As a result of their alleged indifference, Ortiz maintains that he
developed a skin infection which required multiple treatments with antibiotics and
that his pre-existing sciatica condition permanently worsened. Plaintiff also
contends that his hard cell placement constituted retaliation for seeking treatment
for having suicidal thoughts by both Defendants. See id. at (51). As relief,
Plaintiff seeks compensatory and punitive damages.
Presently pending is Defendants’ motion to dismiss the Complaint for failure
to state a claim. See Doc. 18. The opposed motion is ripe for consideration.
Discussion
Defendants seek dismissal of the Complaint on the grounds that a viable
claim of unconstitutional conditions of confinement has not been alleged; the
allegation of retaliation is insufficient; there is no basis for a procedural due
process claim; and they are entitled to qualified immunity. See Doc. 22, p. 3.
Standard of Review
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. 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)).
A plaintiff must present 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 U.S. 544, 555 (2007). This requirement “calls for
enough facts to raise a reasonable expectation that discovery will reveal evidence
of” the necessary elements of the plaintiff’s cause of action. Id. at 556. A
complaint must contain “more than an unadorned, the-defendant-unlawfullyharmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “Threadbare
recitals of the elements of a cause of action, supported by mere conclusory
statements do not suffice.” Id. Legal conclusions must be supported by factual
allegations and the complaint must state a plausible claim for relief. See id. at 679.
“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, 550 U.S. at 555. The reviewing court
must determine whether the complaint “contain[s] either direct or inferential
allegations respecting all the material elements necessary to sustain recovery under
some viable legal theory.” Id. at 562; see also Phillips v. County of Allegheny,
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 evidence of the necessary element[s]” of a particular cause of
action). Additionally, pro se pleadings are to be construed liberally, Haines v.
Kerner, 404 U.S. 519, 520 (1972).
Conditions of Confinement
Defendants initially point out that there are no assertions set forth in the
Complaint that the conditions of Plaintiff’s three day POC confinement were
unconstitutional. See Doc. 22, p. 6. This Court agrees that there are no facts set
forth in the Complaint that could support an Eighth Amendment claim with respect
to Ortiz’s short term POC detention.
With respect to Ortiz’s fourteen day hard cell placement, the Defendants
contend that the assertions that there was a strong odor of feces, that a former
occupant placed feces in the cracks of the cell window, and that there was no seat
in the cell are insufficient to set forth a viable claim of unconstitutional conditions
of confinement.
Prison officials must provide prisoners with the basic necessities of life such
as food, clothing, shelter, sanitation, medical care and personal safety. See Farmer
v. Brennan, 511 U.S. 825, 832 (1994); Helling v. McKinney, 509 U.S. 25, 31
(1993). It is well settled that prison conditions constitute cruel and unusual
punishment if they result in serious deprivations of basic human needs. See
Tillman v. Lebanon County Correctional Facility, 221 F.3d 410 (3d Cir. 2000).
A prison official violates the Eighth Amendment when he acts with
deliberate indifference to a known objectively serious risk to a prisoner’s health or
safety. See Farmer, 511 U.S. at 837; Beers-Capitol v. Whetzel, 256 F. 3d 120, 125
(3d Cir. 2001). This requirement means that “the official must both be aware of
facts from which the inference could be drawn that a substantial risk of serious
harm exists, and he must also draw the inference.” Farmer, 511 U.S. at 837.
The length of the inmate’s exposure to the alleged unconstitutional
conditions and the totality of the circumstances must be considered when making a
determination as to cruel and inhumane treatment. A prisoner must also establish a
specific deprivation of a single, identifiable basic necessity. Wilson v. Seiter, 501
U.S. 294, 304-05 (1991). The inmate must also demonstrate that the prison official
responsible for the conditions of confinement acted with “a sufficiently culpable
state of mind.” Id. at 298.
This is not a case where the Plaintiff is challenging a long term confinement
or alleging that his cell was covered in feces. Ortiz also acknowledges that he was
given cleaning supplies as regularly scheduled after being the cell for five days but
elected not to do any cleaning. It is also noted that are no facts asserted
establishing that the skin infection developed by Plaintiff resulted from the alleged
condition of his cell. Although Plaintiff contends that the cell did not have a seat,
he does not claim that the cell did not have a bed or anywhere else for him to sit.
Given the relatively short period of time spent by Ortiz in the hard cell
(approximately 14 days) and the purported inadequate conditions of that
confinement (odor of feces and lack of a chair) were not of such magnitude as to
constitute the atypical and significant hardship contemplated under Hudson,
Sandin, and Farmer. The request for dismissal will be granted.
Due Process
Defendants next contend that the Complaint to the extent that it asserts that
Plaintiff was placed in the POC and thereafter a hard cell without notice or a
hearing fails to set forth a viable denial of due process claim. See Doc. 22, p. 13.
The Fourteenth Amendment prohibits the states from depriving “any person
of life, liberty, or property, without due process of law.” U.S. Const. amend. XIV,
§ 1. In order to determine whether a due process violation has occurred, an initial
determination must be made that a protected liberty interest exists and, if so, the
next step is to define what process is mandated to protect it. See Sandin v.
Conner, 515 U.S. 472, 484 (1995). A protected liberty interest may be created by
either the Due Process Clause itself or by state law. Id. Due process requirements
apply only when the prison officials’ actions impose “an atypical and significant
hardship on the inmate in relation to the ordinary incidents of prison life.” Id. at
484. Conversely, there can be no due process violation where there is no protected
liberty interest.
The Supreme Court in Sandin stated that "[d]iscipline by prison officials in
response to a wide range of misconduct" is expected as part of an inmate's
sentence. Sandin, 515 U.S. at 485. The United States Court of Appeals for the
Third Circuit relying on the Sandin principles has found no merit in due process
claims presented regarding short term institutional disciplinary custody placement.
See Torres v. Fauver, 292 F.3d 141, 150-51 (3d Cir. 2002)(placement in
segregation as a disciplinary sanction did not implicate a protected liberty interest);
Smith v. Mensinger, 293 F.3d 641, 645, 654 (3d Cir. 2002)(seven (7) months of
disciplinary confinement did not implicate liberty interest).
The Third Circuit in Griffin v. Vaughn, 112 F.3d 703 (3d Cir. 1997),
addressed an action initiated by a Pennsylvania state inmate who had been held in
administrative custody for a prolonged period. The Court applied Sandin and
concluded that placement without any type of due process hearing for a period of
fifteen (15) months was not an atypical and significant hardship. Furthermore, the
inmate's "commitment to and confinement in administrative custody did not
deprive him of a liberty interest and that he was not entitled to procedural due
process protection." Id. at 708. It added that prolonged confinement in
administrative custody was not cruel and unusual punishment. Id. at 709. Finally,
an inmate placed in administrative custody pursuant to a legitimate penological
reason could "be required to remain there as long as that need continues." Id.
Pursuant to the standards developed in Sandin, Torres, Griffin, and similar
subsequent decisions, this Court finds that the Complaint to the extent that it
alleges that Ortiz was subjected to an improper placements in both the POC (3
days) and a hard cell (14 days) for either disciplinary or administrative reasons are
meritless because the magnitude and relatively brief duration of those placements
in SCI-Mahanoy segregated housing units did not implicate a protected liberty
interest.
This determination is bolstered by Plaintiff’s admission that he was placed in
the POC only after he made threats of suicide while showing a correctional officer
that he was in possession of a substantial amount of pills. Clearly, such conduct by
Ortiz provided a legitimate basis for an immediate three day POC placement.
With respect to Plaintiff’s transfer for approximately two weeks to a hard
cell following his release from the POC, the inmate also acknowledges that
Defendants informed him that this short term placement was warranted because of
his recent behavioral issues, specifically his assault on another inmate and the
aforementioned suicide threat, a decision which also is based upon legitimate
penological reasons. Moreover, it is noted that attached to the Complaint are
copies of institutional reports showing that Ortiz receive regular periodic reviews
medical care, and evaluations throughout his RHU confinement.
Since Ortiz has failed to sufficiently allege that he was subjected to an
atypical and significant hardship while confined at SCI-Mahanoy as required under
Sandin, the request for entry of dismissal with respect to the due process claims
will be granted.
Retaliation
Defendants next contend that a viable claim of retaliation is not set forth in
the Complaint. They assert that since Plaintiff was placed in the POC and hard cell
“due to his own misconduct” his retaliation claim must fail. Doc. 22, p. 11.
To establish a Section 1983 retaliation claim, a plaintiff bears the burden of
satisfying three (3) elements. First, a plaintiff must prove that he was engaged in a
constitutionally protected activity. Rauser v. Horn, 241 F.3d 330, 333 (3d Cir.
2001). Second, a prisoner must demonstrate that he “suffered some ‘adverse
action’ at the hands of prison officials.” (Id.)(quoting Allah v. Seiverling, 229 F.3d
220, 225 (3d Cir. 2000)). This requirement is satisfied by showing adverse action
“sufficient ‘to deter a person of ordinary firmness’ from exercising his First
Amendment rights.” (Id.)(quoting Suppon v. Dadonna, 203 F.3d 228, 235 (3d Cir.
2000)). Third, a prisoner must prove that “his constitutionally protected conduct
was ‘a substantial or motivating factor’ in the decision to discipline him.” Rauser,
241 F.3d at 333-34(quoting Mount Health Bd. of Educ. v. Doyle, 429 U.S. 274,
287 (1977)). The mere fact that an adverse action occurs after a complaint or
grievance is filed is relevant, but not dispositive, for the purpose of establishing a
causal link between the two events.2 See Lape v. Pennsylvania, 157 Fed. App’x.
491, 498 (3d Cir. 2005).
Once Plaintiff has made a prima facie case, the burden shifts to the
Defendants to prove by a preponderance of the evidence that they “would have
made the same decision absent the protected conduct for reasons reasonably related
to penological interest.” Carter v. McGrady, 292 F.3d 152, 158 (3d. Cir.
2002)(internal quotation and citation omitted). When analyzing a retaliation claim,
it must be recognized that the task of prison administrators and staff is difficult,
and the decisions of prison officials require deference, particularly where prison
Only where the facts of a particular case are “unusually suggestive” of a
retaliatory motive will temporal proximity, standing alone, support an inference of
causation. Krouse v. American Sterlizer Co., 126 F.3d 494, 503 (3d Cir. 1997).
2
security is concerned. Rauser, 241 F.3d at 334.
This is not a case where a prisoner is alleging that the purported retaliatory
action was taken in response to his initiation of grievances and/or civil suits or his
engagement in any other type of constitutionally protected activity. Rather,
Plaintiff acknowledges that his placements were initiated after he made a suicide
threat and had been found guilty of assaulting another prisoner. As such, this
Court is not satisfied that the Rauser requirement that Plaintiff show that he was
engaged in a constitutionally protected activity was arguably met.
The third Rauser prong requires a prisoner must prove that his
constitutionally protected conduct was a substantial or motivating factor in the
decision to discipline him. Despite a liberal review of the Complaint, it is
apparent that Ortiz’s alleged participation in constitutionally protected conduct
was not a substantial or motivating factor in the decision to segregate him. On the
contrary, the POC and hard cell placements would have been undertaken since
Plaintiff acknowledges that his POC placement was ordered in response to his
credible suicide threat and that his hard cell placement stemmed from both his
suicide threat and recent purported assault on another prisoner. Defendants’
request for dismissal of the retaliation claims will be granted.
Qualified Immunity
Defendants also argue that they are entitled to qualified immunity. See Doc.
22, p. 15. They argue that there have been no constitutional violations and even if
there were constitutional violations in this case, “Plaintiff’s rights were not clearly
established given the facts of this case and the information in the Defendants’
possession.” Id.
Qualified immunity is an affirmative defense which must be pleaded by the
defendant official. Verney v. Pennsylvania Turnpike Comm'n, 881 F. Supp. 145,
149 (M.D. Pa. 1995). In Harlow v. Fitzgerald, 457 U.S. 800 (1982), the Supreme
Court held "that government officials performing discretionary functions generally
are shielded from liability for civil damages insofar as their conduct does not
violate clearly established statutory or constitutional rights of which a reasonable
person would have known." Id. at 818; Sherwood v. Mulvihill, 113 F.3d 396, 39899 (3d Cir. 1997); Showers v. Spangler, 957 F. Supp. 584, 589 (M.D. Pa. 1997).
It has also been held that "qualified immunity is coextensive for suits
brought against state officials under 42 U.S.C. § 1983 (1982), and for suits brought
directly under the Constitution against federal officials." People of Three Mile
Island v. Nuclear Regulatory Commissioners, 747 F.2d 139, 144 n.9 (3d Cir. 1984)
(citing Butz v. Economou, 438 U.S. 478, 504 (1978)).
The Supreme Court in Saucier v. Katz, 533 U.S. 194 (2001), established a
two part test for analyzing qualified immunity claims. See also Curley v. Klem,
298 F.3d 271 (3d Cir. 2002); Bennett v. Murphy, 274 F.3d 133 (3d Cir. 2002). The
initial inquiry in a qualified immunity examination is whether “the facts taken in
the light most favorable to the plaintiff show a constitutional violation.” Bennett,
274 F.3d at 136. The second prong requires a determination as to whether the
constitutional right at issue was clearly established. If so, then a court must inquire
as to “whether it would be clear to a reasonable officer that his conduct was
unlawful in the situation he confronted.” Saucier, 533 U.S. at 201. A
determination that the conduct violated a clearly established constitutional right
precludes the granting of qualified immunity.
This Court has determined that Plaintiff has not set forth a viable claim that
his constitutional rights were violated. Assuming arguendo that a constitutional
violation did occur with respect to the challenged actions taken by the Defendants,
it is apparent that it would not have been clear to a reasonable person that their
conduct was unlawful.
Accordingly, the moving Defendants would be entitled to qualified
immunity. An appropriate Order will enter.
BY THE COURT:
s/ Matthew W. Brann
Matthew W. Brann
United States District Judge
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