MOORE v. WETZEL et al
Filing
48
OPINION and ORDER granting 26 Motion to Dismiss for Failure to State a Claim for the reasons set forth more fully in the Opinion itself. IT IS FURTHER ORDERED that Plaintiff has until December 3, 2015, to file an Amended Complaint solely to correct the deficiencies in the Complaint as set forth in the Opinion. Signed by Magistrate Judge Maureen P. Kelly on 11/13/15. [A copy of this Opinion and Order was mailed to Plaintiff on this date at his address of record]. (bb)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
DEWAYNE MOORE also known as
JAMES BROOKS,
Plaintiff,
)
)
)
)
vs.
)
)
JOHN E. WETZEL Secretary of
)
Department of Correction; LOUIS
)
FOLINO SUPERINTENDENT OF SCI
)
GREENE; LORINDA WINFIELD DSFM; )
WALLACE LEGGETT Major of unit
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Management; JEFFERY ROGERS CCPM; )
DORINA VARNER Chief Grievance
)
Officer,
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Defendants. )
Civil Action No. 14-1709
Chief Magistrate Judge Maureen P. Kelly
Re: ECF No. 26
OPINION AND ORDER
Kelly, Chief Magistrate Judge
Plaintiff DeWayne Moore (“Plaintiff”) is an inmate in the custody of the Pennsylvania
Department of Corrections ("DOC"), and is currently incarcerated at the State Correctional
Institution ("SCI") at Somerset. Plaintiff brings this civil rights action alleging that, while he
was incarcerated at SCI Greene, Defendants John E. Wetzel (“Wetzel”), Louis Folino (“Folino”),
Lorinda Winfield (“Winfield”), Wallace Leggett (“Leggett”), Jeffrey Rogers (“Rogers”), and
Dorina Varner (“Varner”), failed to protect him in violation of his rights provided by the Eighth
Amendment to the United States Constitution.1
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Although Plaintiff states in the Complaint that Defendants’ actions also ran afoul of the Fourth and Fourteenth
Amendments to the Constitution, he has not alleged any facts in the Complaint that would implicate the rights that
those amendments were designed to protect. See ECF No. 3, ¶ 3. See also Bennett ex rel. Irvine v. City of
Philadelphia, 2006 WL 1371189, at *10 (E.D. Pa. May 17, 2006), aff'd, 499 F.3d 281 (3d Cir. 2007), quoting
Bowers v. DeVito, 686 F.2d 616, 618 (7th Cir.1982) (“there is no constitutional right to be protected by the state
against being murdered by criminals or madmen. It is monstrous if the state fails to protect its residents against such
predators but it does not violate the due process clause of the Fourteenth Amendment....”).
Presently before the Court is a Motion to Dismiss Complaint Pursuant to Fed. R. Civ. P.
12(b)(6), submitted on behalf of Defendants. ECF No. 26. For the reasons that follow, the
Motion will be granted.
I.
FACTUAL AND PROCEDURAL BACKGROUND
Although not a model of clarity, it appears from the Complaint that Plaintiff attended a
Program Review Committee meeting (“PRC”) on December 26, 2012, before Defendants
Winfield, Leggett and Rogers. ECF No. 3, p. 2, ¶ B; ECF No. 3-1, p.1. In response to an inquiry
as to whether Plaintiff had any concerns, Plaintiff apparently complained that he was being
called a child molester. Id. According to Plaintiff, Defendant Rogers then called Plaintiff a child
molester and a rat in a loud voice, knowing that the door was open and that there were inmates in
the hall waiting to be seen by the PRC. ECF No. 3, p. 2, ¶ B. When Plaintiff asked for proof
that he was a child molester and “what authority they were using to talk about these things that
were not already a matter [of] public knowledge,” Plaintiff claims that “they” subsequently got
even madder and “wrote down the same despicable lies and put it in [his] file so every person
that picked up that file would see that it said that [Plaintiff] raped a 12 year old white girl.” Id.
Plaintiff alleges that because “the staff is 95% white,” he now has “every white man in the prison
just about beating [him].” Id.
Plaintiff nevertheless contends that at some point after the PRC meeting, “the security
staff came to see [him] to set up two guards.” Id. According to the Complaint, despite the fact
that Plaintiff said “no,” “they kept coming back.” Id. Plaintiff consequently “snapped out on
them” which, in turn, caused “them” to verbally attack Plaintiff calling him a child molester and
a rat. Id.
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Plaintiff contends that in addition to Defendants Winfield, Leggett and Rogers,
Defendants Wetzel and Folino also knew that correction officers were calling him a child
molester and a rat but did nothing to stop it. ECF No. 3, pp. 3-4, ¶¶ 1-5.
Plaintiff submitted a Complaint on December 18, 2014, along with a Motion for Leave to
Proceed in forma pauperis. ECF No. 1. Plaintiff was granted in forma pauperis status on
December 29, 2014, and the Complaint was filed on that same date. ECF Nos. 2, 3. On March
16, 2015, Defendants filed the instant Motion to Dismiss Complaint Pursuant to Fed. R. Civ. P.
12(b)(6), to which Plaintiff filed a Response in Opposition on March 30, 2015. ECF Nos. 26, 33.
Accordingly, Defendants’ Motion to Dismiss is ripe for review.
II.
STANDARD OF REVIEW
In assessing the sufficiency of the complaint pursuant to a motion to dismiss under
Federal Rule of Civil Procedure 12(b)(6), the Court must accept as true all material allegations in
the complaint and all reasonable factual inferences must be viewed in the light most favorable to
the plaintiff. Odd v. Malone, 538 F.3d 202, 205 (3d Cir. 2008). The Court, however, need not
accept bald assertions or inferences drawn by the plaintiff if they are unsupported by the facts set
forth in the complaint. See California Public Employees’ 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. Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). Rather, “[f]actual allegations must be
enough to raise a right to relief above the speculative level.” Id., citing Papasan v. Allain, 478
U.S. 265, 286 (1986). Indeed, the United States Supreme Court has held that a complaint is
properly dismissed under Fed. R. Civ. P. 12(b)(6) where it does not allege “enough facts to state
a claim to relief that is plausible on its face,” id. at 570, or where the factual content does not
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allow the court “to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). See Phillips v. Cnty. of Allegheny, 515
F.3d 224, 231 (3d Cir. 2008) (finding that, under Twombly, “labels, conclusions, and a formulaic
recitation of the elements of a cause of action” do not suffice but, rather, the complaint “must
allege facts suggestive of [the proscribed] conduct” and that are sufficient “to raise a reasonable
expectation that discovery will reveal evidence of the necessary element[s] of his claim”).
Further, although it is well settled that pro se pleadings are to be construed more liberally
than those submitted by counsel, see Haines v. Kerner, 404 U.S. 519, 520 (1972), pro se litigants
are not relieved of their obligation to set forth sufficient facts to state a legally cognizable claim.
See Banks v. Cnty. of Allegheny, 568 F. Supp. 2d 579, 583 (W.D. Pa. 2008), quoting Potter v.
Clark, 497 F.2d 1206, 1207 (7th Cir. 1974) (“[w]here a complaint alleges no specific act or
conduct on the part of the defendant and the complaint is silent as to the defendant except for his
name appearing in the caption, the complaint is properly dismissed, even under the liberal
construction to be given pro se complaints.”); McCauley v. Computer Aid Inc., 447 F. Supp. 2d
469, 476 (E.D. Pa. 2006), aff'd, 242 F. App'x 810 (3d Cir. 2007) (finding that even under the
liberal pleading standard assigned to pro se litigants, plaintiff had failed to allege sufficient facts
to support a claim of conspiracy).
III.
DISCUSSION
Although Plaintiff does not specifically mention the Civil Rights Act in his Complaint, he
nevertheless seeks to vindicate his rights provided by the United States Constitution and thus
necessarily seeks to invoke the Court’s jurisdiction pursuant to 42 U.S.C. § 1983 (“Section
1983”). See Kaucher v. Cnty. of Bucks, 455 F.3d 418, 423 (3d Cir. 2006), citing Baker v.
McCollan, 443 U.S. 137, 145 n. 3 (1979) (“Section 1983 provides remedies for deprivations of
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rights established in the Constitution or federal laws. It does not, by its own terms, create
substantive rights”) (footnote omitted); Arpin v. Santa Clara Valley Transp. Agency, 261 F.3d
912, 925 (9th Cir. 2001) (“a litigant complaining of a violation of a constitutional right does not
have a direct cause of action under the United States Constitution but must utilize 42 U.S.C. §
1983”). See also Sowemimo v. Thomas, 2009 WL 3806737, at *4 (W.D. Pa. Nov. 13, 2009).
Section 1983 provides that:
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 . . . .
42 U.S.C. § 1983. Thus, in order to state a claim for relief under Section 1983, the plaintiff must
allege facts from which it could be inferred that “the defendant, acting under color of state law,
deprived him or her of a right secured by the Constitution or the laws of the United States.” Id.
at 423. Here, as already discussed, Plaintiff claims that Defendants violated his rights provided
by the Eighth Amendment to the Constitution.
It is well established that included within the Eighth Amendment’s ambit is a duty upon
prison officials to “protect prisoners from violence at the hands of other prisoners,” and that the
prison official’s conduct is measured against the well-known standard of “deliberate
indifference.” Farmer v. Brennan, 511 U.S. 825, 833 (1994). See Jones v. Day, 2007 WL
30195, at *3 (W.D. Pa. Jan. 4, 2007).2 Deliberate indifference requires consciousness of a risk to
an inmates health or safety; that is, the official must be “subjectively aware of the risk.” Farmer
2
Although the vast majority of failure to protect cases deal with a correctional officer showing deliberate
indifference to a known harm from another inmate, the standard has been found to apply to a similar showing of
indifference to a known harm to an inmate from a correctional officer as has been alleged here. See Dickens v.
Taylor, 671 F. Supp. 2d 542, 554 (D. Del. 2009).
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v. Brennan, 511 U.S. at 833-847. Thus, in order to succeed on a failure to protect claim under
the Eighth Amendment, a prisoner must show that: (1) he was incarcerated under conditions
posing a substantial risk of serious harm; (2) the defendant was “aware of facts from which the
inference could be drawn that a substantial risk of serious harm exists;” (3) the defendant
actually drew this inference; and (4) the defendant deliberately disregarded the apparent risk. Id.
at 834-37. See Jones v. Day, 2007 WL 30195, at *3 (“[i]t is not an objective test for deliberate
indifference; rather, the court must look to what the prison official actually knew, rather than
what a reasonable official in his position should have known”). See also Jones v. Beard, 145 F.
App’x 743, 745 (3d Cir. 2005); Schaffer v. Wilson, 2007 WL 589023, at *3-4 (W.D. Pa. Feb. 20,
2007).
Further, it is well established that labeling an inmate a snitch or a child molester “may
give rise to an Eighth Amendment violation if the prison official acted with deliberate
indifference to a substantial risk of serious harm to the inmate.” Tabb v. Hannah, 2012 WL
3113856, at *6 (M.D. Pa. July 30, 2012). See Nadal v. Christie, 2014 WL 2812164, at *9
(D.N.J. June 23, 2014), citing Renchenski v. Williams, 622 F.3d 315, 326 (3d Cir. 2010)
(“[c]ourts have stated that labeling a prisoner a child molester in front of other inmates can lead
to a substantial risk of serious harm to the prisoner”); Northington v. Jackson, 973 F.2d 1518,
1525 (10th Cir. 1992) (reversing the district court’s ruling granting a Rule 12(b)(6) motion when
the officer was alleged to have labeled the inmate as a snitch in order to incite other prisoners to
beat the inmate); Miller v. Leathers, 913 F.2d 1085, 1088 n.* (4th Cir. 1990) (“[i]t is impossible
to minimize the possible consequences to a prisoner of being labeled a snitch”); Hendrickson v.
Emergency Med. Services, 1996 WL 472418, at *5 (E.D. Pa. Aug. 20, 1996)(denying
defendants' motion for summary judgment because of factual issue as to whether a guard call a
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prisoner a snitch in front of other inmates); Blizzard v. Hastings, 886 F. Supp. 405, 410 (D. Del.
1995) (being labeled a snitch “can put a prisoner at risk of being injured”).
In this case, notwithstanding Plaintiff’s assertions that corrections officers called him a
child molester and a rat, Plaintiff has failed to plead sufficient facts from which it could be
inferred that Defendants were deliberately indifferent to a known risk to Plaintiff’s safety. First,
Plaintiff has not alleged any facts to support his assertion that he was being called a child
molester or a rat prior to or after the PRC meeting on December 26, 2014. Not only has Plaintiff
failed to identify any correction officer or other staff member who labeled him a child molester
and/or rat, but the Complaint is completely devoid of any facts regarding when the alleged
accusations were made, where they were made, or who was privy to them. See Rode v.
Dellarciprete, 845 F.2d 1195, 1207-08 (3d Cir. 1988) (“[a] defendant in a civil rights action must
have personal involvement in the alleged wrongs .... [which] can be shown through allegations of
personal direction or of actual knowledge and acquiescence. Allegations of participation or
actual knowledge and acquiescence, however, must be made with appropriate particularity” such
as stating time, place and persons responsible). Nor has Plaintiff alleged that he received any
threats or suffered any harm from other inmates as a result of the labelling or that he informed
Defendants of any such threats or harm. See Tabb v. Hannah, 2012 WL 3113856, at *6 (finding
that the plaintiff had failed to state a claim where there was nothing in the Amended Complaint
to suggest that the defendants were aware of any specific inmate threatening the plaintiff or
posing a risk to his safety). See also Hudson v. Kennedy, 2013 WL 4778700, at *10 (W.D. Pa.
Sept. 5, 2013) (“the fear of assault has been held to be insufficient to state a cognizable Eighth
Amendment failure to protect claim”). Absent such facts, the Court cannot reasonably infer that
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Defendants acted with deliberate indifference to a perceived risk of serious harm to Plaintiff’s
safety.
Second, to the extent that Plaintiff claims Defendant Rogers called him a child molester
and rat in a loud voice during the PRC meeting with other inmates within hearing distance,
Plaintiff has not identified any inmates who were outside in the hallway or any that overheard the
discussion; nor has he alleged that there were any negative repercussions as a result. See Rode v.
Dellarciprete, 845 F.2d at 1207-08. Moreover, Plaintiff has failed to allege any facts to suggest
that Rogers, even speaking in a loud voice, was subjectively aware that a substantial risk of harm
existed by referring to Plaintiff as a child molester and a rat during the PRC meeting and
nevertheless disregarded that risk. Indeed, it is not without significance that Winfield, Leggett
and Rogers were discussing the concerns that Plaintiff himself raised during the PRC meeting.
Plaintiff therefore has failed to alleged sufficient facts to state a deliberate indifference claim
against Rogers.
Third, although Plaintiff alleges that “the lies” were written down and placed in his file
“so that every person who picked up the file would see that it said that [Plaintiff] raped a 12 year
old white girl,” Plaintiff does not specifically state who wrote “the lies,” what file they were
placed in, or, most importantly, who had access to the file. Presumably, any file maintained by
the prison staff would not be privy to any inmate and thus could not have created the risk of
harm by other inmates. Moreover, it is clear from the Complaint that Plaintiff was housed in the
Restrictive Housing Unit (“RHU”) and thus did not have any contact with other inmates. See
Tabb v. Hannah, 2014 WL 820092, at *3 (M.D. Pa. Mar. 3, 20014) (finding that the plaintiff was
unable to succeed on a failure to protect claim, in part, because he was housed in the RHU and
not the general population).
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Fourth, insofar as Plaintiff suggests that it was the staff at SCI Greene that caused him
harm, (see ECF No. 3, p. 2: “the staff was 95% white so now I got every white man in the prison
just about beating me”), he has not alleged any facts to support his claim. Plaintiff has not
identified what staff members allegedly assaulted him, when he was allegedly assaulted, or
where. See Rode v. Dellarciprete, 845 F.2d at 1207-08. Moreover, although Plaintiff alleges
that Defendants were aware that he was being called a child molester and a rat, he does not
alleged that he told any of the Defendants that he had been assaulted as a result or that
Defendants were otherwise aware of the alleged assaults. See Miller v. Coning, 2014 WL
3896605, at *1 (D. Del. Aug. 7, 2014) (expressing doubt that the plaintiff’s speculation that the
defendants were made aware of “the incidents” and the “snitch label” would suffice to establish
deliberate indifference to the plaintiff’s safety). Under these circumstances, the Court is unable
to infer, absent pure speculation, that Defendants were deliberately indifferent to a substantial
risk of serious harm.3
Fifth, and perhaps most important, Plaintiff has acknowledged in the Complaint that
shortly after the PRC meeting security staff was sent to Plaintiff’s cell to investigate Plaintiff’s
concerns and “set up two guards.” ECF No. 3: p. 2, ¶ B; p. 3, ¶ 4. These facts seemingly
preclude a finding that Defendants Winfield, Leggett or Rogers were deliberately indifferent to
Plaintiff’s safety. See Tabb v. Hannah, 2014 WL 820092, at *3 (finding that the plaintiff was
3
This is equally true with respect to Defendants Wetzel and Folino. Although Plaintiff alleges that he wrote to
Wetzel on more than one occasion informing him of Plaintiff’s “treatment,” and that Folino also had knowledge of
his complaints, Plaintiff has not alleged any facts to suggest that either Wetzel or Folino were aware of facts from
which it could be inferred that a substantial risk of serious harm existed or that they actually drew the inference and
disregarded the apparent risk. It should also be noted here that Plaintiff has not alleged any facts in the Complaint
suggesting that Defendant Varner violated his constitutional rights. The extent of Plaintiff’s assertions against
Varner is that he wrote and told Varner that there was an “inherent problem getting grievances from restricted
housing unit to central office” and that Varner dismissed Plaintiff’s grievance saying it was not grievable. ECF No.
3, p. 4, ¶ 6. It is well established, however, that “[p]risoners do not have a constitutional right to prison grievance
procedures. . . [n]or do they have a liberty interest protected by the due process clause in the grievance procedures.”
Fears v. Beard, 532 F. App’x 78, 81 (3d Cir. 2013). As such, Defendants’ Motion to Dismiss is properly granted as
to Varner.
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unable to succeed on a failure to protect claim where the prison officials conducted an
investigation). Plaintiff therefore has failed to state a claim for failure to protect under the
Eighth Amendment.
IV.
CONCLUSION
For the foregoing reasons, the Motion to Dismiss Complaint Pursuant to Fed. R. Civ. P.
12 (b)(6), submitted on behalf of Defendants, ECF No. 26, is properly granted. The United
States Court of Appeals for the Third Circuit, however, has held that when dismissing a civil
rights case for failure to state a claim, a court must give the plaintiff an opportunity to amend the
complaint, whether or not the plaintiff has asked to do so, unless it would be inequitable or futile.
See Fletcher–Harlee Corp. v. Pote Concrete Contractors, Inc., 482 F.3d 247, 251 (3d Cir. 2007),
citing Alston v. Parker, 363 F.3d 229, 235 (3d Cir. 2004). At this juncture, the Court cannot say
that allowing Plaintiff to file an Amended Complaint would fall into either category.
Accordingly, the following Order is entered:
ORDER
AND NOW, this 13th day of November, 2015, upon consideration of Defendants’ Motion
to Dismiss Complaint Pursuant to Fed. R. Civ. P. 12 (b)(6), and Plaintiff’s Opposition to Motion
to Dismiss, IT IS HEREBY ORDERED that Defendants’ Motion, ECF No. 26, is GRANTED.
IT IS FURTHER ORDERED that Plaintiff has twenty days from the date of this Order, or until
December 3, 2015, to file an Amended Complaint solely to correct the deficiencies in the
Complaint cited above.
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IT IS FURTHER ORDERED that, pursuant to Rule 4(a)(1) of the Federal Rules of
Appellate Procedure, if Plaintiff wishes to appeal from this Order he must do so within thirty
(30) days by filing a notice of appeal as provided in Rule 3, Fed. R. App. P., with the Clerk of
Court, United States District Court, 700 Grant Street, Room 3110, Pittsburgh, PA 15219.
BT THE COURT:
/s/ Maureen P. Kelly
MAUREEN P. KELLY
CHIEF UNITED STATES MAGISTRATE JUDGE
cc:
Dewayne Moore
AS-1245
SCI Somerset
1600 Walters Mill Road
Somerset, PA 15510
All counsel of record via CM/ECF
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