BOULWARE v. OVERMYER et al
MEMORANDUM OPINION that Plaintiffs due process claim is without merit and will be dismissed. An appropriate Order follows. Signed by Magistrate Judge Susan Paradise Baxter on 3/7/17. (lrw)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
DEPUTY OVERMYER, et al.,
Civil Action No. 15-300 Erie
Magistrate Judge Baxter
United States Magistrate Judge Susan Paradise Baxter.
Relevant Procedural and Factual History
On December 14, 2015, Plaintiff Kenneth Boulware, an inmate formerly incarcerated at
the State Correctional Institution at Forest in Marienville, Pennsylvania ("SCI-Forest"),2 initiated
this action by filing a pro se civil rights complaint pursuant to 42 U.S.C. § 1983, against the
following named Defendants, all of whom were staff members at SCI-Forest at the time Plaintiff
filed this action: Deputy Overmyer ("Overmyer"); Deputy Oveborlander ("Oveborlander");
Major Ennis ("Ennis"); Lt. Haggerty ("Haggerty"); Lt. Davis ("Davis"); Lt. Dickey ("Dickey");
Lt. Murin ("Murin"); Sgt. Cochren ("Cochren"); Sgt. Anthony ("Anthony"); C.O. Mulloly
("Mulloly"); C.O. Drayer ("Drayer"); Dr. Simon ("Simon"); Nurse Hill ("Hill"); and C.O.
All parties have consented to having a United States Magistrate Judge exercise jurisdiction over this matter. [ECF
Nos. 4, 44].
Plaintiff is presently incarcerated at the State Correctional Institution at Fayette in LaBelle, Pennsylvania. [ECF No.
Although not entirely clear from Plaintiff's narrative complaint, it appears Plaintiff is
alleging the following claims: (1) a Fourteenth Amendment due process claim arising from the
theft of a television he purchased for his cell by another inmate, which occurred on December 6,
2014, during recreation time when the cell doors allegedly should have been closed (ECF No. 3,
Complaint, at pp. 5, 10-12); (2) An Eighth Amendment excessive force claim against Defendants
Drayer, Mulloly, Cochren, Baumeratz, and Murin arising from an incident that occurred on
November 11, 2015 (Id. at p. 6); (3) An Eighth Amendment failure to protect claim alleging that
Defendants failed to prevent him from being raped by another inmate on November 18, 2015,
after he had informed them of threats he was receiving from other inmates (Id. at pp. 9, 13); (4)
An Eighth Amendment claim of deliberate indifference to serious medical needs alleging
inadequate medical and/or psychological care (Id. at pp. 6, 12, 14, 16); and (5) An Eighth
Amendment conditions of confinement claim related to the denial of "several" showers and
meals, and continual harassment by correctional officers (Id. at 12).
On June 16, 2016, Defendants filed a partial answer to Plaintiff's complaint [ECF No.
38], and a partial motion to dismiss Plaintiff's Fourteenth Amendment due process claim only
[ECF No. 37]. Plaintiff has since filed a response to Defendants' partial motion to dismiss [ECF
No. 41]. That motion is now ripe for consideration.
Standards of Review
Motion to Dismiss
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.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007).
See also Ashcroft v. Iqbal, 556 U.S. 662, 678 (May 18, 2009) (specifically applying Twombly
analysis beyond the context of the Sherman Act).
The Court need not accept inferences drawn by 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 School 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. 235-36 (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. February 19, 2008) 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
The Third Circuit subsequently 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 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).
Pro Se Pleadings
Pro se pleadings, “however inartfully pleaded,” must be held to “less 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. Boag v.
MacDougall, 454 U.S. 364 (1982); United States ex rel. Montgomery v. Brierley, 414 F.2d 552,
555 (3d Cir. 1969) ("petition prepared by a prisoner... may be inartfully drawn and should be
read 'with a measure of tolerance'”); Freeman v. Department of Corrections, 949 F.2d 360 (10th
Cir. 1991). Under our liberal pleading rules, 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). See, e.g., Nami v. Fauver, 82 F.3d 63, 65 (3d Cir. 1996) (discussing
Fed.R.Civ.P. 12(b)(6) standard); Markowitz v. Northeast Land Company, 906 F.2d 100, 103 (3d
Cir. 1990) (same). Because Plaintiff is a pro se litigant, this Court will consider facts and make
inferences where it is appropriate.
Defendants argue that Plaintiff’s Fourteenth Amendment due process claim must fail
because the availability of a prison grievance procedure satisfies all the requirements of due
process. The Court agrees.
The Due Process Clause was promulgated to secure individuals from the arbitrary
exercise of the powers of government. The procedural aspect of the Due Process Clause
guarantees the availability of certain procedural mechanisms, typically the right to notice and a
hearing, before the government can deprive an individual of a liberty or property interest. In the
context of depriving an inmate of his property, however,
... the Supreme Court has held that meaningful post-deprivation remedies
provide sufficient due process for negligent deprivations of property,
Parratt v. Taylor, 451 U.S. 527, 530 (1981), and intentional deprivations
of property, Hudson v. Palmer, 468 U.S. 517, 533 (1984), and that
requiring a pre-deprivation hearing would be absurd since it would be
impossible to determine when a negligent or intentional deprivation of
property would occur. Zinermon v. Burch, 494 U.S. 113, 117 (1990).
The Court of Appeals has held that the DOC's grievance procedure
provides an adequate post-deprivation remedy, see e.g. Tillman v.
Lebanon County Corr. Fac., 121 F.3d 410, 422 (3d Cir. 2000), and that
the existence of this post-deprivation remedy forecloses any due
process claim, Austin v. Lehman, 893 F.Supp. 448, 454 (E.D.Pa. 1995)
even if an inmate is dissatisfied with the result of the process. Iseley v.
Horn, 1996 WL 510090, at * 6 (E.D.Pa. Sept. 3, 1996). As [the inmate
plaintiff] admits to having used the grievance procedure to attempt the
return of his [property], he had access to an adequate post-deprivation
remedy and even if there had been a violation of his liberty interest he
was not denied the right to due process of law.
Pettaway v. SCI Albion, 2012 WL 366782 at *3-4 (W.D.Pa. Feb. 2, 2012), appeal dismissed, 487
Fed. Appx. 766 (3d Cir. 2012), citing Brooks v. DiGuglielmo, 2008 WL 5187529 at * 6 (E.D.Pa.
Dec. 9, 2008) (emphasis added). See also Monroe v. Beard, 536 F.3d 198, 210 (3d Cir. 2008)
("[b]ecause prisons are constitutionally required to afford inmates only a post-deprivation
remedy, we agree that the defendants' failure to give the inmates prior notice of their intended
seizure of their materials did not violate the plaintiffs' Due Process rights"); Banks v. Beard,
2006 WL 2192015 at * 15 (W.D.Pa. Aug. 1, 2006)(regarding inmate plaintiff's claim that he was
permanently dispossessed of his property, "[t]he Commonwealth of Pennsylvania provides an
adequate post deprivation remedy in the forms of the DOC grievance system and/or a state law
tort law suit against the Defendants... [which] satisfy the Fourteenth Amendment's procedural
due process guarantee") (citations omitted).
Here, as in Pettaway, Plaintiff admits that he utilized the DOC's grievance process to
attempt to obtain the return of the property he claims was improperly taken from his cell and
never returned to him. Thus, he was provided access to an adequate post-deprivation remedy that
has been held to satisfy his procedural due process rights, despite the fact that he is dissatisfied
with the outcome. Accordingly, Plaintiff’s due process claim is without merit and will be
An appropriate Order follows.
/s/ Susan Paradise Baxter
SUSAN PARADISE BAXTER
United States Magistrate Judge
Date: March 7, 2017
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