BRUCE v. ENNIS et al

Filing 20

MEMORANDUM OPINION & ORDER that Defendants motion to dismiss 16 is DENIED.IT IS FURTHER ORDERED that Plaintiffs motion to substitute party 19 is GRANTED. Sherri J. Armstrong, in her capacity as Executor of the Estate of Edward A. Heberling, Jr., is hereby substituted for Edward Heberling as a Defendant. Signed by Magistrate Judge Susan Paradise Baxter on 9/17/15. (lrw)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
LAMONT BRUCE,
Plaintiff

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vs.
PAUL ENNIS, et al,
Defendants.

C.A.No. 14-129ERIE
Magistrate Judge Baxter

MEMORANDUM OPINION
Magistrate Judge Susan Paradise Baxter1

Plaintiff, a state inmate acting pro se2, initiated this civil rights action on April 28, 2014.
As Defendants to this action, Plaintiff named: Paul Ennis, John Chiles, Edward Heberling3, John
Flatt, Jeffrey Case, Mark Hacherl, John Montour, and John Means, all current or former
employees of the Department of Corrections.
In accordance with the provisions of 28 U.S.C. § 636(c)(1), the parties have voluntarily
consented to have a United States Magistrate Judge conduct proceedings in this case, including
the entry of a final judgment.
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Pro se pleadings, Ahowever inartfully pleaded,@ must be held to Aless stringent standards than
formal pleadings drafted by lawyers.@ Haines v. Kerner, 404 U.S. 519, 520 (1972). If the court
can reasonably read pleadings to state a valid claim on which the litigant could prevail, it should
do so despite failure to cite proper legal authority, confusion of legal theories, poor syntax and
sentence construction, or litigant=s unfamiliarity with pleading requirements. See Boag v.
MacDougall, 454 U.S. 364 (1982). Under our liberal pleading rules, during the initial stages of
litigation, a district court should construe all allegations in a complaint in favor of the
complainant. Gibbs v. Roman, 116 F.3d 83 (3d Cir. 1997), overruled on other grounds by
Abdul-Akbar v. McKelvie, 239 F.3d 307 (3d Cir. 2001). Because Plaintiff filed the complaint
while he was a pro se litigant, this Court will consider facts and make inferences where it is
appropriate.
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Mr. Heberling is deceased.
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Plaintiff alleges that Defendants failed to protect him from attack by a fellow inmate.
Plaintiff claims that: 1) Defendants Ennis, Heberling, Flatt and Montour acted with deliberate
indifference by removing his Z-code status in May of 2012, and 2) thereafter Defendants Chiles,
Case, Hacherl and Means acted with deliberate indifference by assigning Inmate Gillis to cell
with Plaintiff and by refusing to heed the warnings from Plaintiff that Gillis repeatedly
threatened him with physical violence. On October 31, 2012, Gillis attacked Plaintiff with an
open razor blade while he slept. Plaintiff suffered severe injuries to his face, throat, and arm.
In response to the complaint, four of the eight Defendants (Ennis, Heberling, Flatt and
Montour) have filed a motion to dismiss.4 ECF No. 16. An opposition brief has been filed on
Plaintiff’s behalf by newly obtained counsel. ECF No. 18. The present motion is ripe for
disposition by this Court.

A. Standard of Review
A motion to dismiss filed pursuant to Federal Rule of Civil Procedure 12(b)(6) must be
viewed in the light most favorable to the plaintiff and all the well-pleaded allegations of the
complaint must be accepted as true. Erickson v. Pardus, 551 U.S. 89, 93-94 (2007). A complaint
must be dismissed pursuant to Rule 12 (b)(6) if it does not allege “enough facts to state a claim
to relief that is plausible on its face.” Twombly, 550 U.S. at 570 (rejecting the traditional 12
(b)(6) standard set forth in Conley v. Gibson, 355 U.S. 41 (1957)). See also Ashcroft v. Iqbal,
556 U.S. 662 (2009) (specifically applying Twombly analysis beyond the context of the Sherman
Act).
The remaining Defendants have filed neither a motion to dismiss nor an answer to the
complaint.
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A Court need not accept inferences drawn by a plaintiff if they are unsupported by the
facts as set forth in the complaint. See California Pub. Employee Ret. Sys. v. The Chubb Corp.,
394 F.3d 126, 143 (3d Cir. 2004) citing Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906
(3d Cir. 1997). Nor must the Court accept legal conclusions set forth as factual allegations.
Twombly, 550 U.S. at 555, citing Papasan v. Allain, 478 U.S. 265, 286 (1986). See also
McTernan v. City of York, Pennsylvania, 577 F.3d 521, 531 (3d Cir. 2009) (“The tenet that a
court must accept as true all of the allegations contained in a complaint is inapplicable to legal
conclusions.”). A plaintiff’s factual allegations “must be enough to raise a right to relief above
the speculative level.” Twombly, 550 U.S. at 556, citing 5 C. Wright & A. Miller, Federal
Practice and Procedure § 1216, pp. 235-236 (3d ed. 2004). Although the United States Supreme
Court does “not require heightened fact pleading of specifics, [the Court does require] enough
facts to state a claim to relief that is plausible on its face.” Id. at 570.
In other words, at the motion to dismiss stage, a plaintiff is “required to make a ‘showing’
rather than a blanket assertion of an entitlement to relief.” Smith v. Sullivan, 2008 WL 482469,
at *1 (D. Del.) quoting Phillips v. County of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008). “This
‘does not impose a probability requirement at the pleading stage,’ but instead ‘simply calls for
enough facts to raise a reasonable expectation that discovery will reveal evidence of’ the
necessary element.” Phillips, 515 F.3d at 234, quoting Twombly, 550 U.S. at 556 n.3.
The Third Circuit has expounded on the Twombly/Iqbal line of cases:
To determine the sufficiency of a complaint under Twombly and Iqbal, we must take
the following three steps:
First, the court must ‘tak[e] 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
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are well-pleaded factual allegations, a court should assume their veracity and then
determine whether they plausibly give rise to an entitlement for relief.’
Burtch v. Milberg Factors, Inc., 662 F.3d 212, 221 (3d Cir. 2011) quoting Santiago v.
Warminster Twp., 629 F.3d 121, 130 (3d Cir. 2010).
The parties have filed exhibits in support of, and in opposition to, the motion to dismiss.
The use of these exhibits by this Court does not convert Defendants= motion to dismiss into
motion for summary judgment. Pryor v. National Collegiate Athletic Association, 288 F.3d 548,
560 (3d Cir. 2002) (A...certain matters outside the body of the complaint itself, such as exhibits
attached to the complaint and facts of which the court will take judicial notice, will not trigger
the conversion of an Federal Rule of Civil Procedure 12(b)(6) motion to dismiss to an Federal
Rule of Civil Procedure 56 motion for summary judgment.”).

B. The Prison Litigation Reform Act
1) The Exhaustion Requirement
Defendants Ennis, Heberling, Flatt and Montour move to dismiss the claim against them
based upon Plaintiff’s failure to exhaust his administrative remedies in accordance with the
requirements of the Prison Litigation Reform Act, 42 U.S.C. § 1997e(a), which provides:
no action shall be brought with respect to prison conditions under
section 1983 of this title ... by a prisoner confined in any jail, prisons,
or other correctional facility until such administrative remedies as
are available are exhausted.
Id. The exhaustion requirement is not a technicality, rather it is federal law which federal district
courts are required to follow. Nyhuis v. Reno, 204 F.3d 65, 73 (3d Cir. 2000) (by using language
“no action shall be brought,” Congress has “clearly required exhaustion”).

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The PLRA’s exhaustion requirement “is a non-jurisdictional prerequisite.” Small v.
Camden County, 728 F.3d 265, 270 n.3 (3d Cir. 2013). The requirement that an inmate exhaust
administrative remedies applies to all inmate suits regarding prison life, including those that
involve general circumstances as well as particular episodes. Porter v. Nussle, 534 U.S. 516
(2002); Cutter v. Wilkinson, 544 U.S. 709, 723 n.12 (2005) (noting that the PLRA requires that
“a prisoner may not sue under RLUIPA without first exhausting all available administrative
remedies.”); Concepcion v. Morton, 306 F.3d 1347 (3d Cir. 2002) (for history of exhaustion
requirement).
The PLRA also requires “proper exhaustion” meaning that a prisoner must complete the
administrative review process in accordance with the applicable procedural rules of that
grievance system. Woodford v. Ngo, 548 U.S. 81, 87-91 (2006) (“Proper exhaustion demands
compliance with an agency’s deadlines and other critical procedural rules ...”). Importantly, the
exhaustion requirement may not be satisfied “by filing an untimely or otherwise procedurally
defective ... appeal.” Id. at 83.5
So then, no analysis of exhaustion may be made absent an understanding of the
administrative process available to state inmates. “Compliance with prison grievance procedures,
therefore, is all that is required by the PLRA to ‘properly exhaust.’ The level of detail necessary
in a grievance to comply with the grievance procedures will vary from system to system and

See also Spruill v. Gillis, 372 F.3d 218, 228-29 (3d Cir. 2004) (utilizing a procedural default
analysis to reach the same conclusion) (“Based on our earlier discussion of the PLRA's
legislative history, [...] Congress seems to have had three interrelated objectives relevant to our
inquiry here: (1) to return control of the inmate grievance process to prison administrators; (2) to
encourage development of an administrative record, and perhaps settlements, within the inmate
grievance process; and (3) to reduce the burden on the federal courts by erecting barriers to
frivolous prisoner lawsuits.”).
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claim to claim, but it is the prison’s requirements, and not the PLRA, that define the boundaries
of proper exhaustion.” Jones v. Bock, 549 U.S. at 218. See also Spruill v. Gillis, 372 F.3d 218,
231 (3d Cir. 2004) (having concluded that the PLRA includes a procedural default component,
the Court then indicated that “prison grievance procedures supply the yardstick for measuring
procedural default.”).

2) The Administrative Process Available to State Inmates
The DC-ADM 804 grievance system, available to state prisoners, consists of three
separate stages. First, the prisoner is required to timely submit a written grievance for review by
the facility manager or the regional grievance coordinator within fifteen days of the incident,
who responds in writing within ten business days. Second, the inmate must timely submit a
written appeal to intermediate review within ten working days, and again the inmate receives a
written response within ten working days. Finally, the inmate must submit a timely appeal to the
Central Office Review Committee within fifteen working days, and the inmate will receive a
final determination in writing within thirty days. See Booth v. Churner, 206 F.3d 289, 293 n.2
(3d Cir. 1997), aff’d. 532 U.S. 731 (2001).

3) Analysis of Plaintiff’s use of the administrative remedy process
In his pro se complaint, Plaintiff alleges that he exhausted his administrative remedies
through Grievance Numbers 488060 and 488113.6 In support of their motion to dismiss,

It is not a plaintiff’s burden to affirmatively plead exhaustion. Small v. Camden County, 728
F.3d 265, 270 n.3 (3d Cir.2013); Jones v. Bock, 549 U.S. 199, 217 (2007) (“...failure to exhaust
is an affirmative defense under the PLRA, and inmates are not required to specially plead or
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Defendants point out that Grievance 488060 mentions no names but only complains of the
actions of “SCI Forest staff” relative to the revocation of his Z-code status and the attack by
Inmate Gillis. Defendants provide no argument as to the other grievance (488113) mentioned by
Plaintiff in the complaint.
In opposition to the motion to dismiss, Plaintiff argues that besides Grievances 488060
and 488113, there is at least one additional grievance (410845) filed on May 1, 2012 (the day
Plaintiff’s Z-code status was removed) that pertains to the subject matter of this case. Plaintiff
contends that without conducting discovery it is premature to grant a motion to dismiss on the
basis of failure to exhaust. This Court agrees.
The motion to dismiss will be denied in this regard.

C. Failure to Protect
1) Plaintiff’s allegations
In his complaint, Plaintiff alleges that prior to and during his incarceration, he has lived a
“sexually alternative lifestyle.”7 ECF No. 5, ¶ 2. During the early part of his incarceration,
Plaintiff was subject to “numerous physical attacks by several different homophobic cell-mates.”
Id. at ¶ 3. In 1997, while incarcerated at SCI Pittsburgh, Plaintiff was physically assaulted by a
homophobic cellmate. Id. at ¶ 4.
In November of 1997, Plaintiff was assigned Z-code (or single-cell) status by SCI
Pittsburgh staff. Id. at ¶ 5. Plaintiff alleges this Z-code assignment was based on the physical
demonstrate exhaustion in their complaints.”). Instead, the failure to exhaust must be asserted
and proven by the defendants. Ray v. Kertes, 285 F.3d 287, 295 (3d Cir. 2002).
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This is the term by which Plaintiff describes himself.
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altercations which were motivated by Plaintiff’s “sexually alternative lifestyle” and for mental
health reasons. Id.
Plaintiff retained the Z-code status until May 1, 2012. Id. at ¶ 6. On that date, Plaintiff
met with Heberling and Montour who informed him that his Z-code was being lifted by decision
of Heberling, Montour, Ennis, and Flatt. Id. at ¶ ¶ 7-8. Plaintiff protested, explaining that he
would be “subjected to physical violence” by a cellmate “because Plaintiff is a homosexual.” Id.
at ¶ 9.
Plaintiff alleges he informed Heberling, Montour, Ennis and Flatt that he had experienced
physical harm at the hands of several cellmates prior to his Z-code assignment, and that the
assignment was made due to such violence. Id. at ¶ 10. Plaintiff alleges that these Defendants
disregarded the risk to his safety and removed the Z-code status despite Plaintiff’s protestations.
Id. at ¶ 11. After Plaintiff was celled with a cellmate, his cellmate attacked him while he slept.
Id. at ¶ ¶ 12-13.

2) The motion to dismiss
Defendants move to dismiss this claim arguing that Plaintiff has failed to state a failureto-protect claim against Ennis, Heberling, Flatt and Montour.
The Eighth Amendment=s prohibition against the infliction of cruel and unusual
punishment has been interpreted to impose upon prison officials a duty to take reasonable
measures A>to protect prisoners from violence at the hands of other prisoners.=@ Hamilton v.
Leavy, 117 F.3d 742, 746 (3d Cir. 1997) quoting Farmer v. Brennan, 511 U.S. 825, 833 (1994).
To succeed on an Eighth Amendment claim alleging a failure to protect, a plaintiff must
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show that: (1) he was incarcerated under conditions posing a substantial risk of serious harm;
(2) the defendant was Aaware of facts from which the inference could be drawn that a substantial
risk of serious harm exists;@ (3) the defendant actually drew that inference; and (4) the defendant
deliberately disregarded the apparent risk. Farmer, 511 U.S. at 834-37.
In determining whether a defendant was deliberately indifferent, the court must Afocus
[on] what a defendant=s mental attitude actually was (or is), rather than what it should have been
(or should be).@ Hamilton, 117 F.3d at 747. AA prison official=s knowledge of a substantial risk is
a question of fact and can, of course, be proved by circumstantial evidence.@ Id. AIn other words,
it may be concluded that a prison official knew of a substantial risk from the very fact that the
risk was obvious.@ Jones v. Day, 2007 WL 30195 at *4 (W.D. Pa. Jan. 4, 2007). For instance:
[I]f an Eighth Amendment plaintiff presents evidence showing that a
substantial risk of inmate attacks was >longstanding, pervasive, welldocumented, or expressly noted by prison officials in the past,= and the
circumstances suggest that the defendant-official being sued had been
exposed to information concerning the risk and thus >must have known=
about it, then such evidence could be sufficient to permit a trier of fact to
find that the defendant-official had actual knowledge of the risk.
Farmer, 511 U.S. at 842-43 (citations omitted).
Here, Defendants argue that Plaintiff has failed to state a cognizable failure to protect
claim against these Defendants because the statements Plaintiff made to them “were the furthest
thing away from articulating a specific threat of serious harm” because the statements “are
nothing more than Plaintiff’s nebulous concern that something might possibly happen to him by
some unknown cellmate at some time in the future.” ECF No. 17, page 8. This is not the case
here. Plaintiff alleges that he told these Defendants specifically that he was repeatedly attacked at
another institution based upon his “sexually alternative lifestyle” and was given Z-code status
because of the attacks.
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It is sufficient at this stage to note that Plaintiff’s allegations contain enough information
from which it may be found that these Defendants each knew and disregarded the fact that
Plaintiff faced a substantial risk of serious harm if he were to be celled with another inmate.
Thus, Defendants’ motion to dismiss Plaintiff’s claim against Defendants Ennis, Heberling, Flatt
and Montour will be denied.

An appropriate order will be entered.

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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
LAMONT BRUCE,
Plaintiff

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vs.
PAUL ENNIS, et al,
Defendants.

C.A.No. 14-129ERIE
Magistrate Judge Baxter

ORDER

AND NOW, this 17th day of September, 2015;
IT IS HEREBY ORDERED that Defendants’ motion to dismiss [ECF No. 16] is
DENIED.
IT IS FURTHER ORDERED that Plaintiff’s motion to substitute party [ECF No. 19] is
GRANTED. Sherri J. Armstrong, in her capacity as Executor of the Estate of Edward A.
Heberling, Jr., is hereby substituted for Edward Heberling as a Defendant.

/s/ Susan Paradise Baxter
SUSAN PARADISE BAXTER
United States Magistrate Judge

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