LY v. VARNER et al

Filing 28

ORDER granting in part and denying in part 21 Motion for Judgment on the Pleadings. The Motion is GRANTED as to Plaintiff's claims against all Defendants in their official capacities; the Motion is DENIED as to Plaintiff's failure to protect claims against Defendants Varner, Heide, and Glass in their individual capacities; and the Motion is GRANTED as to Plaintiff's claims against Defendant Nose. Signed by Magistrate Judge Cynthia Reed Eddy on 6/30/2014. (bsc)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
WEI LY,
Plaintiff,
v.
AMY VARNER, SHAWN NOSE, JANE
HEIDE, and LEO GLASS,
Defendants.

)
)
)
)
)
)
)
)
)

Civil Action No. 2: 13-cv-01102
United States District Magistrate
Cynthia Reed Eddy

MEMORANDUM OPINION AND ORDER
Presently pending is the Motion for Judgment on the Pleadings filed by Defendants Amy
Varner, Shawn Nose, Jane Heide, and Leo Glass, with brief in support (ECF Nos. 21 and 22) and
Plaintiff’s Opposition Response, with brief in support (ECF Nos. 26 and 27). For the reasons that
follow, the Motion will be granted in part and denied in part.1
Factual Background2
Plaintiff, Wei Ly, is a prisoner currently incarcerated at SCI-Somerset. On August 15,
2013, Plaintiff filed a Complaint, which remains the operative complaint. (ECF No. 6). Named
as defendants are Unit Manager Amy Varner, Captain Shawn Nose, Warden Jane Heide, and
Deputy Leo Glass. All Defendants are sued in both their individual and official capacities.
Plaintiff’s claims are based upon events which occurred while he was confined at SCIGreensburg, his former place of confinement. According to the allegations of the Complaint, on
The parties have consented to jurisdiction by the undersigned Magistrate Judge. See ECF
Nos. 9, 14, and 16.
1

As the law requires, all disputed facts and inferences are resolved in favor of Plaintiff, the
non-moving party.
2

1

May 8, 2012, Plaintiff was “sexually assaulted in the shower of JB mod” by his cell mate and
the assault occurred after he had advised his Unit Manager, Defendant Varner, that “he had a
problem with an inmate.” Complaint at ¶¶ 9-12. Plaintiff alleges that after the incident,
Defendant Varner “stated this was [Plaintiff’s] fault and made bad comments” and that
Defendant Nose coerced Plaintiff into withdrawing his grievance regarding the assault. Id. at ¶¶
17-31. Plaintiff also asserts that Defendants Heide and Glass were “in charge of the prison and
[had] to provide safety to inmates.” Id. at § IV, ¶ C. He seeks compensatory and punitive
damages.
Defendants have filed the instant Motion for Judgment on the Pleadings in which they
seek to have judgment entered in their favor pursuant to Federal Rule of Civil Procedure 12(c).
Plaintiff filed a response in opposition which contains additional factual assertions and to which
he has attached numerous pages of exhibits (ECF Nos. 26 and 27).3 Because Plaintiff is a
prisoner appearing pro se, the Court will consider the factual allegations contained in his
response. See Baker v. Younkin, 529 F. App’x 114 (3d Cir. 2013) (citing Lewis v. Att’y Gen. of
U.S., 878 F.2d 714, 722 (3d Cir. 1989)). The matter has been fully briefed and is ripe for
disposition.
B.

Standard of Review
1.

Pro Se Litigants

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, 520–521 (1972). If
The use of these exhibits by the Court does not convert the motion for judgment on the
pleadings into a motion for summary judgment. Pryor v. Nat’l Collegiate Athletic Ass’n, 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.”).
3

2

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 the litigant's unfamiliarity with pleading requirements. Boag
v. MacDougall, 454 U.S. 364 (1982); United States ex rel. Montgomery v. Bierley, 141 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”).
In a section 1983 action, the court must liberally construe the pro se litigant's pleadings
and “apply the applicable law, irrespective of whether a pro se litigant has mentioned it by
name.” Higgins v. Beyer, 293 F.3d 683, 688 (3d Cir. 2002) (quoting Holley v. Dep't of Veteran
Affairs, 165 F.3d 244, 247–48 (3d Cir. 1999)).

See also Nami v. Fauver, 82 F.3d 63, 65 (3d

Cir. 1996) (“Since this is a § 1983 action, the [pro se] plaintiffs are entitled to relief if their
complaint sufficiently alleges deprivation of any right secured by the Constitution.”) (quoting
Higgins, 293 F.3d at 688). 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). 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 Co., 906 F.2d 100,
103 (3d Cir. 1990) (same). Notwithstanding this liberality, pro se litigants are not relieved of
their obligation to allege sufficient facts to support a cognizable legal claim. See, e.g., Taylor v.
Books A Million, Inc., 296 F.3d 376, 378, (5th Cir. 2002).
Because Plaintiff is a pro se litigant, this Court may consider facts and make inferences
where it is appropriate.
2.

Motion for Judgment on the Pleadings Pursuant to Rule 12(c)
“A motion for judgment on the pleadings is not granted ‘unless the movant clearly

3

establishes that no material issue of fact remains to be resolved and that he is entitled to
judgment as a matter of law.’ Jablonski v. Pan American World Airways, 863 F.2d 289, 290 (3d
Cir. 1988) (quoting Society Hill Civil Assoc. v. Harris, 632 F.2d 1045, 1054 (3d Cir. 1980)).”
Pellegrino Food Products Co., Inc. v. City of Warren, 136 F. Supp.2d 391, 399 (W.D.Pa. 2000).
A rule 12(c) motion is judged under the same standards as a motion to dismiss under Rule
12(b)(6) of the Federal Rules of Civil Procedure. Turbe v. Gov’t of Virgin Islands, 938 F.2d 427,
428 (3d Cir. 1991). The only difference is that on a motion for judgment on the pleadings, the
Court reviews not only the complaint, but also the answer and written instructions attached to the
pleadings. 2 James Wm. Moore, et al., Moore’s Federal Practice - Civil ¶ 12.38 (2010). As a
general rule, if a court “consider[s] matters extraneous to the pleadings” on a motion for
judgment on the pleadings, the motion must be converted into one for summary judgment. In re
Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997). However, a court may
consider (1) exhibits attached to the complaint, (2) matters of public record, and (3) all
documents that are integral to or explicitly relied upon in the complaint, even if they are not
attached thereto, without converting the motion into one for summary judgment. Mele v. Fed.
Reserve Bank of N.Y., 3 59 F.3d 251, 256 n. 5 (3d Cir. 2004); Pension Benefit Guaranty Corp. v.
White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993).
In considering a Rule 12(b)(6) motion, the Court must accept all well-pleaded facts and
allegations, and must draw all reasonable inferences therefrom in favor of the plaintiff. Burtch v.
Milberg Factors, Inc., 62 F.3d 212, 220 (3d Cir. 2011), cert. denied, -- U.S. --, 131 S. Ct. 1861
(2012) (citing In re Ins. Brokerage Antitrust Litig., 618 F.3d 300, 314 (3d Cir. 2010)). However,
as the Supreme Court of the United States made clear in Bell Atlantic Corp. v. Twombly, such
“[f]actual allegations must be enough to raise a right to relief above the speculative level.” 550

4

U.S. 554, 555 (2007). See also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (holding that, while
the Complaint need not contain detailed factual allegations, it must contain more than a
“formulaic recitation of the elements” of a constitutional claim and must state a claim that is
plausible on its face) (quoting Twombly, and providing further guidance on the standard set forth
therein).
To determine the legal sufficiency of a complaint after Twombly and Iqbal, the United
States Court of Appeals for the Third Circuit instructs that a district court must make a three-step
approach when presented with a motion to dismiss for failure to state a claim. Santiago v.
Warminster Twp., 629 F.3d 121, 130 n.7 (3d Cir. 2010) (noting that although Iqbal describes the
process as a “two-pronged approach,” it views the case as outlining three steps) (citing Iqbal,
556 U.S. at 675). First, “the court must ‘tak[e] note of the elements a plaintiff must plead to state
a claim.” Id. at 130 (quoting Iqbal, 556 U.S. at 675) (alteration in original). Second, the court
“should identify allegations that, ‘because they are no more than conclusions, are not entitled to
the assumption of truth.’” Id. (quoting Iqbal, 556 U.S. at 679). Third, ‘”where there are wellpleaded factual allegations, a court should assume their veracity and then determine whether they
plausibly give rise to an entitlement for relief.’” Id. (quoting Iqbal, 556 U.S. at 679).
Courts generally consider the allegations of the complaint, attached exhibits, and matters
of public record in deciding motions to dismiss. Pension Benefit Guar. Corp. v. White Consol.
Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993). Factual allegations within documents described
or identified in the complaint also may be considered if the plaintiff’s claims are based upon
those documents. Id. (citations omitted). In addition, a district court may consider indisputably
authentic documents without converting a motion to dismiss into a motion for summary
judgment. Spruill v. Gillis, 372 F.3d 218, 223 (3d Cir. 2004); Lum v. Bank of America, 361 F.3d

5

217, 222 (3d Cir. 2004) (in resolving a motion to dismiss pursuant to Rule 12(b)(6), a court
generally should consider “the allegations in the complaint, exhibits attached to the complaint,
matters of public record, and documents that form the basis of a claim.”).
Discussion
A.

Claims Brought Against Defendants in Their Official Capacities
At all times relevant to this lawsuit, Defendants were all employees or officials employed

by the DOC. Therefore, to the extent that Plaintiff has named Defendants in their official
capacities, such claims are barred by the Eleventh Amendment.

See, e.g., Braun v. State

Correctional Institution at Somerset, 2010 WL 10398, *5-6 (W.D. Pa. 2010)(“a section 1983
action against a state official in his official capacity is not a suit against the person but it is a suit
against itself and as such, the action is barred by the Eleventh Amendment.”).4
Thus, all official capacity claims against Defendants will be dismissed.
B.

Claims Against Defendants Heide, Glass, and Varner
To prevail on a failure to protect claim, Plaintiff must point to evidence in the record that

Defendants both knew of and were deliberately indifferent to an excessive risk to his safety.
Blackstone v. Thompson, -- F. App’x --, 2014 WL 2581153 at *2 (3d Cir. June 10, 2014)
(citing Beers-Capitol v. Whetzel, 256 F.3d 120, 131 (3d Cir. 2001) (citing Farmer v. Brennan,
511 U.S. 825, 837 (1994)).
The Court of Appeals for the Third Circuit has instructed then when making a
determination as to deliberate indifference, the court must

There has been a limited exception read into the Eleventh Amendment for actions seeking
prospective injunctive relief under Ex parte Young, 209 U.S. 123 (1908). See Wolfe v.
Pennsylvania Department of Corrections, 334 F. Supp.2d 762, 776 (E.D.Pa. 2004). This
exception does not apply in this case, as Plaintiff is not seeking prospective injunctive relief.
4

6

focus [on] what a defendant’s mental attitude actually was (or is), rather than what
is should have been (or should be).” Hamilton v. Leavy, 117 F.3d 742, 747 (3d
Cir. 1997) (internal citation and quotation marks omitted).
Deliberate
indifference is “a state of mind more blameworthy than negligence.” Farmer, 511
U.S. at 835. Even if Defendant [ ] “knew the underlying facts but believed (albeit
unsoundly) that the risk to which the facts gave rise was insubstantial or
nonexistent,” liability will not attach. Id. at 844.
Id.
Both Defendants Heide and Glass were supervisory DOC officials at SCI-Greensburg.
Defendants Heide and Glass argue that they are entitled to judgment because Plaintiff fails to
state a claim under § 1983 as he failed to allege their personal involvement in the purported
violations of his rights.
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.M. ex rel. J.M.K. v. Luzerne Cnty. Juvenile
Det. Ctr., 372 F.3d 572, 586 (3d Cir. 2004). In order to sufficiently allege that a defendant knew
and acquiesced in his subordinate's unconstitutional conduct, a plaintiff must plead the
defendant's (1) contemporaneous knowledge of the offending incident or knowledge of similar
incidents in the past, and (2) actions or inactions which communicated approval of the
subordinate's behavior. See C.H. ex rel. Z.H. v. Oliva, 226 F.3d 198, 202 (3d Cir. 2000).
Additionally, allegations that a supervisor “tolerated past or ongoing misbehavior” may suffice
to establish his or her personal involvement. Baker v. Monroe Township, 50 F.3d 1186, 1191 n. 3
(3d Cir. 2004). Accordingly, where the supervisory defendant is found to have knowledge of
ongoing constitutional issues or problems, and the supervisory defendant has the authority or
means to address the matters, failing to take appropriate action can be a basis for supervisory
liability. See Zion v. Nassau, 727 F.Supp.2d 388 (W.D.Pa. 2010); Barber v. Pennsylvania State

7

Police, Civ. A. No. 06–1713, 2007 WL 2071896 (W.D.Pa. Jul.19, 2007).
Through the allegations of the Complaint, Plaintiff states that “On May 2, 2012, plaintiff
submitted a request to move out of bed 45 JB to Bed 42 JA.” (ECF No. 6 at 6, ¶ 9.) In support
of this allegation, Plaintiff has attached to his memorandum in opposition, two “Inmate’s
Request to Staff Member” forms. (ECF No. 27-1). One request is addressed to “Warden (Ms.
Heide)” and the other to “Deputy Warden (Mr. Glass),” both are dated May 2, 2012, six (6) days
prior to the assault, and both state as follows:
I have a problem with inmate (Mr. Abrams). I am living with him I am
being pressured in his homosexual ways. I need to move as soon as possible I
like to switch from 45 JB to 42 JA. Thank you.
(ECF No. 27-1 at 2-3).
While a close case, the Court finds that, in light of Plaintiff's pro se status and, giving him
the benefit of all reasonable inferences, the Complaint adequately alleges that Defendants Heide
and Glass had been advised and were made aware of the problems Plaintiff was having with his
cell mate and failed to take appropriate action.
Defendant Varner was the Unit Manager, who according to the Complaint “denied to
move plaintiff which resulted in attack.” (ECF No. 6 at 3.) Defendant Varner argues that she is
entitled to judgment because Plaintiff did not provide her with any specific information
regarding his request to move. In his Complaint, Plaintiff alleges that he submitted a request to
move cells on May 2, 2012; that he spoke with Defendant Varner the next day about his request,
and that on May 7, 2012, Defendant Varner informed Plaintiff she was denying his request.
(ECF No. 6, at ¶¶ 9-11.) According to Defendants, prior to the assault, Plaintiff had not advised
anyone of his specific issues with his cellmate.

However, Plaintiff has attached to his

memorandum in opposition an “Inmate’s Request to Staff Member” dated May 2, 2012, and

8

addressed to Ms. Varner, which states as follows:
Say that I have a problem with inmate (Mr. Abrams) I am living with him.
I am being pressured in his homosexual ways. I like to switch from 45 JB to 42
JA. Thank you.
(ECF No. 27-2 at 2.)
As with the claims against Defendants Heide and Glass, the Court finds that, in light of
Plaintiff's pro se status and, giving him the benefit of all reasonable inferences, the Complaint
adequately alleges that Defendant Varner had been advised and was aware of the problems
Plaintiff was having with his cell mate and failed to take appropriate action.
The Court recognizes that discovery may well reveal that the alleged conduct of
Defendants Heide, Glass, and Varner does not give rise to a failure to protect claim, but at this
early stage of the litigation, the allegations of the Complaint must be accepted as true and all
reasonable inferences must be drawn in Plaintiff’s favor.

Accordingly, the requests of

Defendants Heide, Glass, and Varner for judgment will be denied.
C.

Claims Against Defendant Nose
According to the Complaint, Defendant Nose used his authority to force Plaintiff to

withdraw his grievance regarding the sexual assault and told Plaintiff that he “could not leave the
room unless I stated that I ask Ms. Varner, to move and did not specifically tell her why.”
Complaint at ¶18.

Plaintiff asserts that Defendant Nose’s conduct “violated his Amendment

rights to be free from cruel and unusual punishment.” (ECF No. 6 at 10.)
It is well-established that inmates do not have a constitutionally protected right to a
prison grievance system. Freeman v. Dep't of Corr., 447 F. App'x 385, 387 (3d Cir. 2011).
Thus, Plaintiff’s claim that Defendant Nose coerced him into withdrawing his grievance, fails to
state a claim under §1983, as these allegations do not implicate either Plaintiff’s “rights to be

9

free from cruel and unusual punishment” or his due process rights. See Allen v. Warden of
Dauphin Cnty. Jail, No. 07–1720, 2008 WL 4452662, at *5 (M.D.Pa. Sept. 29, 2008) (holding a
prison official's refusal to provide grievance forms or respond to an inmate's complaint does not
constitute a violation of due process).
The Court agrees with Defendants that, even assuming this allegation to be true and,
viewing all inferences in favor of Plaintiff, this allegation still does not create an actionable
claim against Defendant Nose, but rather presents a set of facts which may create a genuine issue
of material fact as to whether the exhaustion requirement is excused because prison officials
interfered sufficiently with Plaintiff’s access to the grievance process system. The Court notes,
however, that Defendants are not asserting a failure to exhaust as an affirmative defense in the
present motion.
Accordingly, judgment will be entered in favor of Defendant Nose.
Conclusion
For all the foregoing reasons, the Motion for Judgment on the Pleadings will be granted
in part and denied in part.

AND NOW, this 30th day of June, 2014,
It is hereby ORDERED that Defendants’ Motion for Judgment on the Pleading is
GRANTED IN PART AND DENIED IN PART, as follows:
1.

The Motion is GRANTED as to Plaintiff’s claims against all Defendants in their

official capacities;
2.

The Motion is DENIED as to Plaintiff’s failure to protect claims against

Defendants Varner, Heide, and Glass in their individual capacities; and
10

3.

The Motion is GRANTED as to Plaintiff’s claims against Defendant Nose and

judgment is hereby entered in favor of Defendant Nose.

s/Cynthia Reed Eddy
Cynthia Reed Eddy
United States Magistrate Judge

cc:

WEI LY
JL-4217
1600 Walters Mill Road
Somerset, PA 15510
Scott A. Bradley
Office of the Attorney General
Email: [e-mail]

11