BROWN v. ALLEGHENY COUNTY et al

Filing 42

MEMORANDUM OPINION & ORDER re 29 MOTION to Dismiss 9 Amended Complaint filed by ROBERT BURNETT. The motion to dismiss is GRANTED as to Plaintiffs claim (Count I) of cruel and unusual punishment under the Eighth Amendment but leave is g ranted to amend the complaint to set forth a claim of failure to protect. The motion to dismiss is DENIED as to Counts II and III. IT IS FURTHER ORDERED THAT Plaintiff is granted leave to file a Second Amended Complaint on or before January 22, 2016 in order to address pleading deficiencies identified herein. Signed by Magistrate Judge Robert C. Mitchell on 1/7/16. (kld)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
TARA BROWN,
Plaintiff,
v.
ROBERT BURNETT and JOSEPH
CLEMENTE
,
Defendants.

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Civil Action No. 15-284
Magistrate Judge Robert C. Mitchell

OPINION
Presently pending before the court is Defendant Robert Burnett’s Motion to Dismiss
[ECF No. 29], with brief in support. Plaintiff has filed a brief in opposition [ECF No. 33] and
Defendant has filed a reply [ECF No. 37]. For the reasons that follow, we will grant the motion
in as to Count I and deny it as to Counts II and III.
I. Introduction
This action arises out of an incident that occurred in March of 2014 while plaintiff Tara
Brown, a former inmate, was being transported from the Allegheny County Jail to a McKeesport,
Pennsylvania magistrate court for her summary trial.

She alleges the defendants violated her

rights under the Eighth and Fourteenth Amendments of the United States Constitution, invoking
to 42 U.S.C. § 1983, and a state law claim of intentional infliction of emotional distress.
Defendant Burnett has filed a Motion to Dismiss Plaintiff’s Amended Complaint, pursuant to
Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim. [ECF No. 29].
Defendants Robert Burnett and Joseph Clemente are the two constables who transported
Plaintiff in their police vehicle. Plaintiff alleges that during transport, another passenger sitting
next to her in the rear seat of the car, known to defendants as having a history of violence,

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exposed himself to plaintiff several times and asked for sexual favors, although he did not touch
her. Plaintiff alleges she reported the incident to the defendants upon arrival at the magistrate
court and defendants later disregarded her distress and placed her back in the vehicle with the
perpetrator on the return trip to the jail. She now sues for violations of the Eighth (Count I) and
Fourteenth (Count II) Amendments, pursuant to 28 U.S.C. § 1983, as well as a state law claim
for intentional infliction of emotional distress (Count III).
We have jurisdiction pursuant to 28 U.S.C. § 1331.
II. Legal Standard
A defendant moving to dismiss under Fed. R. Civ. P. 12(b)(6) bears the burden of
proving that the plaintiff has failed to state a claim for relief. See Fed. R. Civ. P. 12(b)(6); see
also, e.g., Hedges v. United States, 404 F.3d 744, 750 (3d Cir. 2005). To survive a Rule 12(b)(6)
motion, the complaint must contain sufficient factual matter, accepted as true, to state a facially
plausible claim to relief. Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868
(2009); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929
(2007). A claim is plausible “when the plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556
U.S. at 678, 129 S.Ct. 1937.
As the Supreme Court stresses, “the tenet that a court must accept as true all of the
allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of
the elements of a cause of action . . . do not suffice.” Id. Courts “are not bound to accept as true
a legal conclusion couched as a factual allegation.” Twombly, 550 U.S. at 555, 127 S.Ct. 1955.
In the wake of Twombly and Iqbal, our Court of Appeals laid out a two-part test to apply when
considering a motion to dismiss under Fed. R. Civ. P. 12(b)(6):

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First, the factual and legal elements of a claim should be separated. The District Court must
accept all of the complaint's well-pleaded facts as true, but may disregard any legal conclusions.
Second, a District Court must then determine whether the facts alleged in the complaint are
sufficient to show that the plaintiff has a ‘plausible claim for relief.’
Fowler v. UPMC Shadyside, 578 F.3d 203, 210–11 (3d Cir. 2009) (internal citations omitted). In
deciding a motion to dismiss, we may consider “the allegations contained in the complaint,
exhibits attached to the complaint and matters of public record,” and any “undisputedly authentic
document that a defendant attaches as an exhibit to a motion to dismiss if the plaintiff's claims
are based on the document.” Pension Benefits Guar. Corp. v. White Consol. Indus., Inc., 998
F.2d 1192, 1196 (3d Cir. 1993).
The court must allow amendment by the plaintiff in civil rights cases brought under §
1983 before dismissing pursuant to Rule 12(b) (6), irrespective of whether it is requested, unless
doing so would be “inequitable or futile.” Fletcher–Harlee Corp. v. Pote Concrete Contractors,
Inc., 482 F.3d 247, 251 (3d Cir. 2007).
With this standard in mind, we turn to the allegations of the Amended Complaint.
III. Allegations in the Amended Complaint
Tara Brown, then-charged with a probation violation, was being transported from the
Allegheny County Jail to a McKeesport, Pennsylvania magistrate hearing for her summary trial.
[Amended Complaint, ECF No. 9 at ¶¶ 11, 12]. Defendants Robert Burnett and Joseph
Clemente were the two constables who conducted the transport in their police vehicle. [ECF No.
9 at ¶ 13]. Just prior to transport, Ms. Brown heard the constables discussing the man with
whom she would be riding – Jabree Thornhill. [ECF No. 9 at ¶ 14]. The Defendant Constables
stated that they needed to be careful with Thornhill because he was violent. [ECF No. 9 at ¶ 15].
They went on to say that the last time Thornhill was in a police vehicle he had, while handcuffed
and shackled, (1) slipped his handcuffs, (2) kicked out one of the vehicle’s back doors, (3) fled
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from police, and (4) car jacked a woman before being caught. [ECF No. 9 at ¶ 16]. Ms. Brown
was immediately afraid to ride with someone who was strong enough to escape from a locked
police car and tried not to meet Thornhill’s eyes or draw attention to herself. [ECF No. 9 at ¶ 17].
Plaintiff further alleges that as soon as they were both seated in the rear of Defendant
Constables’ police vehicle - Ms. Brown on the driver’s side behind Defendant Burnett and
Thornhill on the passenger side behind Defendant Clemente - Thornhill began to talk to Ms.
Brown. [ECF No. 9 at ¶ 18]. Ms. Brown ignored Thornhill as much as possible without making
him angry; she was extremely concerned that something she said would set Thornhill off. [ECF
No. 9 at ¶ 19]. A few minutes into the ride, after their vehicle stopped at a red light and began
moving again, Thornhill pulled out his penis over his pants and said to Ms. Brown “do you think
it’s big?” [ECF No. 9 at ¶ 22]. Thornhill kept his penis out for several seconds before slipping it
back into his pants. [ECF No. 9 at ¶ 23]. Twice Thornhill is alleged to have again exposed
himself to Ms. Brown and asked her if she would “suck it.” [ECF No. 9 at ¶¶ 24, 27]. Ms.
Brown repeatedly told Thornhill she was not interested and tried to ignore him. [ECF No. 9 at ¶
30]. Given Thornhill’s violent background, she was afraid that if she shouted for help he would
attack her. [ECF No. 9 at ¶ 31].
Ms. Brown also knew that she could not defend herself if Thornhill jumped her because
she was handcuffed and shackled. [ECF No. 9 at ¶ 32]. Furthermore, Ms. Brown was sexually
molested for several years when she was a child, and in the face of Thornhill’s unwanted
advances she “froze inside.” [ECF No. 9 at ¶33]. Ms. Brown alleges that Defendant Constables
could not hear Thornhill’s remarks because the constables had closed the glass partition between
the front and back seat. [ECF No. 9 at ¶ 36]. Ms. Brown tried to get Defendant Constables’
attention during the harassment by making eye contact in the rearview mirror and via her facial

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expressions. [ECF No. 9 at ¶ 37]. At one point during the ride, Ms. Brown “knows she caught
Defendant Burnett’s attention, but he did not take any action.” [ECF No. 9 at ¶ 38].
Defendant Clemente1 later acknowledged that he saw her trying to get their attention and could
tell by the look on her face that something was wrong. [ECF No. 9 at ¶ 38 (a)-(c)].
Upon arrival, Ms. Brown reported Thornhill’s behavior to defendants and stated “she
could not handle riding in the car with Thornhill” on the return trip to the Allegheny County Jail
after the hearings concluded. [ECF No. 9 at ¶¶ 41, 42.] Although Defendants promised her she
would be transferred to a different vehicle for the return trip, they instead placed her in the
vehicle with Thornhill, with a third inmate between her and Thornhill; they asked the third
inmate to “watch” Thornhill. [ECF No. 9 at ¶¶ 44, 52.] She further alleges that during the ride,
she suffered extreme emotional distress and felt physically ill from fear. [ECF No. 9 at ¶¶ 56,
57]. She further alleges that in a subsequent conversation with defendant Clemente, Clemente
told her that it was defendant Burnett’s idea to put her in the back of the vehicle with the random
inmate between her and Thornhill, and Clemente did not feel those actions were appropriate.
[ECF No. 9 at ¶ 60(a)-(b)].
Thornhill was later charged with three counts of indecent exposure and one count of
harassment; he pled guilty to indecent exposure. [ECF No. 9 at ¶¶ 61, 62]. Later, when Ms.
Brown heard Thornhill was released, she feared for her safety because she knew Thornhill would
hold her responsible for the additional charges against him. [ECF No. 9 at ¶ 63].
Plaintiff alleges this fear forced her to move her residence. [ECF No. 9 at ¶¶ 63, 64].
Finally, she alleges that she continues to suffer emotional distress from this event; she currently
is seeking counseling and has been prescribed medication for anxiety. [ECF No. 9 at ¶ 66].

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Clemente has not moved to dismiss the Amended Complaint, and has filed an Answer. [ECF No. 15].

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IV. Discussion
As stated, Plaintiff asserts constitutional claims against state actor Defendants in her
Complaint under § 1983. In a § 1983 civil rights action, the plaintiff must prove the following
two essential elements: (1) that the conduct complained of was committed by a person acting
under color of state law; and (2) that the conduct complained of deprived the Plaintiff of rights,
privileges or immunities secured by the law or the Constitution of the United States. Parratt v.
Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981); Kost v. Kozakiewicz, 1 F.3d 176,
184 (3d Cir. 1993). Further, § 1983 is not a source of substantive rights. Rather, it is a means to
redress violations of federal law by state actors. Gonzaga Univ. v. Doe, 536 U.S. 273, 284–85,
122 S.Ct. 2268, 153 L.Ed.2d 309 (2002).
That defendant is a state actor is not at issue. The parties have stipulated that constables
are retained by district magistrates but are employees of the Commonwealth of Pennsylvania.
[ECF No. 5 at 2].
A. Whether Plaintiff’s claims are barred by the PLRA
Defendant argues that Plaintiff’s cause of action is barred by the Prison Litigation
Reform Act, 42 U.S.C. § 1997e(a) due to her incarcerated status. The PLRA states: “[n]o action
shall be brought with respect to prison conditions ... by a prisoner confined in any jail, prison, or
other correctional facility until such administrative remedies as are available are exhausted.” 42
U.S.C. § 1997e(a) (emphasis added). Defendant has attached to their Brief in Support of his
motion numerous bench warrants in support of his argument that Ms. Brown was incarcerated on
the day she filed suit. Defendants states that “the Court may take judicial notice of the attached
docket sheets (Exhibit “A”), which reveal that the Plaintiff has engaged in a lengthy course of
criminal conduct” [ECF No. 30 at 3, n. 1] and “the Plaintiff has a lengthy criminal record.

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Accordingly, there is nothing pled of record to suggest that the Plaintiff was not incarcerated at
the time her Complaint was filed.” [ECF No. 37 at 7] (emphasis added). We reject Defendant’s
argument. First, we note that Defendant has not provided specific citation to these attachments
to support his broadly worded assertion. Second, we find Ms. Brown was incarcerated on the
day in question, but it is clear from the wording of the Amended Complaint that Ms. Brown was
a former inmate at the time she filed her suit. A prisoner who has been released is not precluded
by the PLRA from filing a § 1983 suit for incidents concerning prison conditions which occurred
prior to her release. Ahmed v. Dragovich, 297 F.3d 201, 210 (3d Cir. 2002). This action was
brought on February 27, 2015. [ECF No. 1]. Her Amended Complaint clearly states that she
resides in Homestead, Pennsylvania [ECF No. 9 at ¶ 3], alleges she was released soon after her
hearing in McKeesport [ECF No. 9 at ¶ 11], and refers to a conversation with Defendant
Clemente that took place in her apartment complex in McKeesport, Pennsylvania sometime after
her release. [ECF No. 9 at ¶ 38a].
Accordingly, we will deny defendant’s motion to the extent it is based on a bar by the
PLRA.
B. Whether the conduct complained of constitutes cruel and unusual punishment
Defendant moves to dismiss Count I on the grounds that his alleged conduct does not rise
to the level of cruel and unusual punishment, either by placing her in the vehicle with Thornhill
and ignoring her attempts to get his attention, or by having her return to the jail in the same
vehicle as Thornhill after becoming aware of Thornhill’s lewd behavior. Defendant notes that
Ms. Brown has not pled that the defendant’s actions lacked penological justification or that he
was actually aware of Thornhill’s conduct in the car on the first leg of the transport while such
conduct was occurring.

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The Eighth Amendment guards against the infliction of cruel and unusual punishment.
U.S. Const. Amend. VIII. Among the guarantees associated with Eighth Amendment protection
is the right to “‘humane conditions of confinement.’ ” Betts v. New Castle Youth Dev. Ctr., 621
F.3d 249, 256 (3d Cir. 2010) (quoting Farmer v. Brennan, 511 U.S. 825, 832, 114 S.Ct. 1970,
128 L.Ed.2d 811 (1994)). Notably, the conditions-of-confinement protection includes an
affirmative duty on the government's part to “‘take reasonable measures to guarantee the safety’”
of those in its custody. Id. at 256 (quoting Farmer, 511 U.S. at 832, 114 S.Ct. 1970).
The parties do not dispute that Ms. Brown is subject to the protections of the Eighth
Amendment by virtue of her detention status; she appears to have been a convicted inmate for
purposes of this analysis. Bell v. Wolfish, 441 U.S. 520, 535-37 (1979). Her complaint alleges
that she was “in prison because of a minor, or summary offense” and that this offense “triggered
a violation of her probation” for her DUI offense “resulting in a short (although sadly traumatic)
incarceration; she was released soon after her hearing in McKeesport. [ECF No. 9 at ¶¶ 10, 11].
Defendant cites to numerous cases in support of his argument that his conduct does not
rise to the level of cruel and unusual punishment under the law. Broadly speaking, the cases he
cites involve isolated instances of inappropriate conduct by prison officials and employees
themselves and include allegations of actual contact of a sexual nature with plaintiffs. These
cases cited generally hold that plaintiffs’ allegations of physical touching were insufficient to
establish an Eight Amendment violation. [See ECF No. 30 at 5-6].
In response, Plaintiff cites to a single case with a similar fact pattern, Jordan v. Gardner,
986 F.2d 1521 (9th Cir. 1993), wherein the Court of Appeals for the Ninth Circuit held that
female prisoners with history of sexual abuse were subject to cruel and unusual punishment
when prison official conducted random cross-gender pat downs because the pain and

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psychological trauma suffered went beyond the momentary discomfort experienced during
search procedures. Id. at 1526. Plaintiff concedes that Jordan is not binding on us, having been
decided by a court of appeals in another circuit.
A punishment is cruel and unusual under the Eighth Amendment when it inflicts
unnecessary and wanton pain, including those that are totally lacking in penological justification,
Rhodes v. Chapman, 452 U.S. 337, 346, 101 S.Ct. 2392, 69 L.Ed.2d 59 (1981), and those which
evince “calculated harassment unrelated to prison needs.” Hudson v. Palmer, 468 U.S. 517, 530,
104 S.Ct. 3194, 82 L.Ed.2d 393 (1984). To be actionable, the “punishment” must be
“objectively, sufficiently serious,” and the official must have acted with a “sufficiently culpable
state of mind.” Farmer, 511 U.S. at 834.
As mentioned earlier, in his Brief in Support of the Motion to Dismiss, defendant cites
numerous cases in support of his contention that inappropriate sexual advances by prison
officials are not Eighth Amendment violations. [ECF No. 30 at 5-6]. These cases were
addressed in Banks v. Rozum, 2015 WL 1186224 *13 (W.D. Pa. 2015), wherein Chief Judge
Conti of this court recently granted defendants motion to dismiss an Eighth Amendment claim
brought by a state prisoner who alleged that the defendant prison guard groped plaintiff's
genitals, made sexually offensive comments, and threatened to sabotage Plaintiff's general
population status. In so ruling, and as defendant herein explains, this court noted that “several
courts have found that isolated instances of inappropriate conduct by prison officials do not
violate an inmate's constitutional rights under the Eighth Amendment.” 2015 WL 1186224 at
*13-14.2

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The court cited:
See, e.g., Washington v. Harris, 186 F. App'x 865, 866 (11th Cir.2006) (holding that inmate failed to state an Eighth
Amendment claim where a prison guard “crept up behind [the prisoner inmate] while he was working,” grabbed his
genitals, kissed him on the mouth, and threatened to perform oral sex on him); Jackson v. Madery, 158 F. App'x

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We further note that the Court in Banks emphasized:
[O]nly severe or repetitive sexual abuse has been found to rise to the level of an Eighth
Amendment violation. See, e.g., Schwenk v. Hartford, 204 F.3d 1187 (9th Cir.1999) [sic]
(repeated requests for oral sex and attempted rape of inmate by prison guard may establish
Eighth Amendment claim); United States v. Walsh, 194 F.3d 37 (2d Cir.1999) (corrections
officer who repeatedly steps on inmate's penis to wantonly inflict pain violates inmate's right to
be free of cruel and unusual punishment); Berry v. Oswalt, 143 F.3d 1127 (8th Cir.1998) (rape
and harassment of inmate, including propositions, sexual comments, and attempts to perform
non-routine pat-down violated inmate's Eighth Amendment right to be free from cruel and
unusual punishment).
Id. at *14.
In response to Defendant’s reliance on the above caselaw, Ms. Brown clarifies that her
cause of action is distinguishable, given the length of time over which she was subjected to
Thornhill’s conduct and Burnett’s awareness of Thornhill’s violent past. She argues that
Burnett’s actions are different from a single pat-down or single incident. Burnett is alleged to
have been acting over a course of an hour and a half with deliberate indifference and disregard to
her well-being. [ECF No. 33 at 7]. These arguments are not persuasive. She clarifies, however,
that she is alleging more specifically that Defendant Burnett failed to protect her, insofar as she
alleges he was aware that Thornhill had acted out during a previous transport but disregarded her
safety by “ignoring the backseat and failing to take action after Ms. Brown signaled him that
something was wrong.” [ECF No. 33 at 6]. Indeed, as described earlier, the Amended
656, 661 (6th Cir.2005) (holding that the plaintiff's allegations that a guard grabbed and rubbed his buttocks in a
degrading manner during a shakedown in the food area was insufficient to establish an Eighth Amendment
violation); Hughes v. Smith, 237 F. App'x 756, 759 (3d Cir.2007) (holding that the inmate had not alleged an Eighth
Amendment violation where the correctional officer allegedly touched the inmate's testicles through his clothing
during a single pat-down frisk); Young v. Brock, No. 10–cv–01513, 2012 U.S. Dist. LEXIS 14262, 2012 WL
385494, at *4 (D. Colo. Feb.7, 2012) (holding that the plaintiff's allegations that he was subjected to unnecessary
and unwelcomed sexual touching by a prison guard in the course of a single pat-down search did not state a claim
under the Eighth Amendment, particularly where the plaintiff conceded that the pat-down had a penological
purpose); Pantusco v. Sorrell, No. 09–cv–3518, 2011 U.S. Dist. LEXIS 58040, 2011 WL 2148392, at *7–8 (D.N.J.
May 31, 2011) (holding that the plaintiff's Eighth Amendment claim failed because a single instance of groping
during a routine pat-down frisk did not amount to cruel and unusual punishment); Escobar v. Reid, 668 F.Supp.2d
1260, 1278, 1295–96 (D. Colo. 2009) (holding that a guard's alleged suggestive, sexual touching of an inmate did
not state a constitutional violation); Williams v. Anderson, No. Civ. A. 03–3254, 2004 U.S. Dist. LEXIS 20305,
2004 WL 2282927, at *4 (D. Kan. Sept. 7, 2004) (finding no Eighth Amendment violation where a prison guard
grabbed a pre-trial detainee's buttocks, exposed his genitals to the inmate plaintiff, and made crude sexual remarks).

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Complaint alleges that the Defendants knew Thornhill was violent. [Doc. 9 at ¶ 15]. Even after
he knew what had happened on the way to the hearing, Burnett is alleged to have initially told
Ms. Brown she would not have to ride back to the jail with Thornhill, but ultimately put her in
the car with Thornhill, even though an alternative means of transport was available. [Doc. 9 at
¶¶ 50, 51, and 55]. Ms. Brown further argues that “[t]o compound the cruelty and wantonness
of this situation, after being notified that Ms. Brown was extremely distressed and ‘could not
handle riding with Thornhill’ on the return trip, Defendant Burnett placed Ms. Brown with
Thornhill again, subjecting her to an additional thirty minutes of psychological trauma and
damaging physical effects.” [ECF No. 33 at 6].
Thus, plaintiff’s theory is grounded in the Eighth Amendment’s prohibition against cruel
and unusual punishment which has been interpreted to impose a duty upon prison officials to
take reasonable measures “‘to protect prisoners from violence at the hands of other prisoners.’ ”
Farmer v. Brennan, 511 U.S. at 833, 114 S.Ct. at 1976 (quoting Cortes-Quinones v. Jimenez–
Nettleship, 842 F.2d 556, 558 (1st Cir. 1988)). While “[i]t is not ... every injury suffered by one
prisoner at the hands of another that translates into constitutional liability for prison officials
responsible for a victim's safety,” “[b]eing violently assaulted in prison is simply not ‘part of the
penalty that criminal offenders pay for their offenses against society.’ ” Farmer, 511 U.S. at 834,
114 S.Ct. at 1977 (quoting Rhodes v. Chapman, 452 U.S. 337, 345, 101 S.Ct. 2392, 2398, 69
L.Ed.2d 59(1981)). Accordingly, “[a] prison official's deliberate indifference to a substantial
risk of serious harm to an inmate violates the Eighth Amendment.” Id. at 828, 114 S.Ct. at 1974.
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, 511 U.S. at 833–847. The
risk of harm is evaluated objectively. Betts, 621 F.3d at 256. Thus, in order to succeed on a

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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. Farmer, 511 U.S. at 834–37; see Jones v. Day, 2007 WL 30195
at *3 (W.D. Pa. 2007), (“[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).
A plaintiff may satisfy his burden of establishing the defendant's actual knowledge of
serious risk “in the usual ways, including inference from circumstantial evidence.” Farmer, 511
U.S. at 842. Further, the inquiry focuses on the awareness of a substantial risk of harm vel non,
rather than awareness of particular characteristics of that harm. That is, a prison official who is
aware of an obvious and substantial risk to inmate safety will not escape liability for deliberate
indifference simply because he did not actually know that the claimant was “especially likely to
be assaulted by the specific prisoner who eventually committed the assault.” Id. at 843.
Plaintiff’s allegations as to Defendant Burnett differ from and are less compelling than
those as to Defendant Clemente, non-movant. She alleges that she “knows she caught Defendant
Burnett’s attention, but he did not take any action.” [ECF No. 9 at 38]. In contrast, her
allegations as to Defendant Clemente are more specific as to his awareness: “Clemente admitted
that he saw Ms. Brown trying to get the constables’ attention . . . by the look on Ms. Brown’s
face he ‘knew something was wrong.’” [ECF No. 9. at ¶ 38 b, c].

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We reiterate that to be actionable, the “punishment” must be “objectively, sufficiently
serious,” and the official must have acted with a “sufficiently culpable state of mind.” Farmer,
511 U.S. at 834. A fair reading of the Amended Complaint leads us to conclude that Plaintiff
has not stated a claim for cruel and unusual punishment under the Eighth Amendment as to this
Defendant with respect to her allegation that Burnett failed to protect her from Thornhill’s
actions. There is scant factual support to that legal conclusion. We will therefore grant the
motion to dismiss Count I but permit a curative amendment as to failure to protect, should
plaintiff so choose. Phillips v. County of Allegheny, 515 F.3d 224, 236 (3d Cir. 2008) (holding
that district courts must permit curative amendments “unless an amendment would be inequitable
or futile”).
Accordingly, the dismissal of Count I will be granted as to the cruel and unusual
punishment claim but plaintiff is granted leave to file an amended complaint alleging failure to
protect.
C. Whether Plaintiff’s claim is barred by the explicit source rule
Defendant next argues that Ms. Brown’s Fourteenth Amendment claim at Count II is
barred by the explicit source rule. County of Sacramento v. Lewis, 523 U.S. 833, 843–44 (1998).
Under this rule “ ‘if a constitutional claim is covered by a specific constitutional provision, such
as the Fourth or Eighth Amendment, the claim must be analyzed under the standard appropriate
to that specific provision, not under the rubric of substantive due process.’” Betts v. New Castle
Youth Dev. Ctr., 621 F.3d 249, 259–60 (3d Cir. 2010) (quoting United States v. Lanier, 520 U.S.
259, 272 n. 7, 117 S.Ct. 1219, 137 L.Ed.2d 432 (1997)).
In Betts the Third Circuit Court of Appeals applied the more-specific-provision rule
(a.k.a. the explicit textual source rule) in a case where the plaintiff, a juvenile adjudicated

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delinquent and committed to the custody of Pennsylvania's Department of Welfare's Bureau of
Juvenile Justice Services, brought both substantive due process and Eighth Amendment claims
challenging the same conduct concerning conditions of his confinement and an alleged failure by
Defendants to ensure his safety. The court held that “[b]ecause these allegations fit squarely
within the Eighth Amendment's prohibition on cruel and unusual punishment, we hold that the
more-specific-provision rule forecloses Betts’ substantive due process claims.” Id. at 261.
We find that the explicit source rule does not apply herein, as Ms. Brown has articulated
and seeks redress under two separate and independent sources of protection: the prohibition
against cruel and unusual punishment under the Eighth Amendment and second, the state-created
danger theory established in Kneipp v. Tedder, 95 F.3d 1199, 1208 (3d Cir. 1996), as part of the
Fourteenth Amendment’s protections.
Our decision rests in large part on Ms. Brown’s unique dual status as a prisoner and
pretrial detainee. She is alleged to have been serving time for one minor, summary offense,
which triggered a violation of her probation and was being transported to her summary trial in
McKeesport. The difference in status between a convicted prisoner and a pretrial detainee is
important to determine the source and extent of Plaintiff's liberty and substantive due process
rights. The Eighth Amendment applies only after the state “has secured a formal adjudication of
guilt” because, prior to that time, it has not acquired “the power to punish with which the Eighth
Amendment is concerned.” Tri Thanh Nguyen v. Franklin Cnty. Sheriffs Dep't, 512 Fed.Appx.
188, 190 (3d Cir.2013), quoting Ingraham v. Wright, 430 U.S. 651, 671 n. 40, 97 S.Ct. 1401, 51
L.Ed.2d 711 (1977). Once convicted, the Eighth Amendment then imposes a duty on prison
officials to provide “humane conditions of confinement; prison officials must ensure that inmates
receive adequate food, clothing, shelter, and medical care.” Farmer v. Brennan, 511 U.S. at 832.

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With respect to pretrial detainees, because one may not be punished prior to conviction and
sentencing, the Due Process Clause of the Fourteenth Amendment prohibits prison officials from
imposing conditions that amount to punishment of a pretrial detainee. Hubbard v. Taylor, 399
F.3d 150, 158 (3d Cir.2005), citing Bell v. Wolfish, supra. Accordingly, pretrial detainees are
afforded greater constitutional protection under the Fourteenth Amendment than that provided to
convicted prisoners under the Eighth Amendment. Id. at 167 n. 23 (citation omitted). Because
Defendants' Motion to Dismiss Plaintiff's Fourteenth Amendment claims is predicated upon an
erroneous application of the explicit textual source rule, and out of an abundance of caution, it
will be denied.
D. Whether the plaintiff has stated a claim under the Fourteenth Amendment
Plaintiff alleges in Count II that defendant violated her rights under the Fourteenth
Amendment, pursuant to 42 U.S.C. §1983, by subjecting her to a state-created danger and
acting with deliberate indifference and/or gross negligence or arbitrariness, and alleges that his
actions shock the conscience [ECF No. 9 at ¶¶ 77-79].
Although the due process clause does not impose an affirmative obligation on the state to
protect it citizens, DeShaney v. Winnebago County Dept. of Soc. Servs., 489 U.S. 189, 195-96
(1989), under the state created danger doctrine, the state may assume responsibility for the safety
of an individual for whom it affirmatively creates or enhances a risk of danger. Kneipp v.
Tedder, 95 F.3d 1199, 1208 (3d. Cir. 1996).
The Third Circuit has established a four- factor test to make out such a claim: (1) the
harm ultimately caused was foreseeable and fairly direct; (2) a state actor acted with a degree of
culpability that shocks the conscience; (3) a relationship between the state and the plaintiff
existed such that the plaintiff was a foreseeable victim of the defendant's acts, or a member of a

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discrete class of persons subjected to the potential harm brought about by the state's actions, as
opposed to a member of the public in general; and (4) a state actor affirmatively used his or her
authority in a way that created a danger to the citizen or that rendered the citizen more vulnerable
to danger than had the state not acted at all. Bright v. Westmoreland County, 443 F.3d 276, 281
(3d Cir. 2006) (quotations and footnotes omitted). A plaintiff's failure to satisfy any one of the
above elements will defeat the state created danger claim. See Morse v. Lower Merion Sch. Dist.,
132 F.3d 902, 914 (3d Cir.1997).
Defendant attacks Count II by asserting that Plaintiff has failed to allege facts sufficient
to meet the first and second elements of the state-created danger test. [ECF No. 37 at 4-6].3
Courts in the Third Circuit hold that to effectively establish the first element of a statecreated danger claim, i.e., foreseeable and direct harm, a plaintiff must demonstrate “ ‘an
awareness on the part of the state actors that rises to the level of actual or an awareness of risk
that is sufficiently concrete to put the actors on notice of the harm’ ”and that the harm was “ ‘a
fairly direct result of the defendant's acts.’ ” Id. (quoting Phillips, 515 F.3d at 238, 239).
Foreseeability requires that officials were aware, and thus on notice, of the risk of harm, while
the “fairly direct” portion of the test provides that defendants’ actions cannot be “separated from
the ultimate harm by a lengthy period of time and intervening forces and actions.” Henry v. City
of Erie, 728 F.3d 275, 282 (3d Cir. 2013).
We find that Ms. Brown has pled facts that state a plausible claim under the first prong of
the state-created danger test. She has alleged that just prior to transport, Ms. Brown heard the
constables discussing Thornhill, stating that they needed to be careful with Thornhill because he
was violent. [ECF No. 9 at ¶ 15]. They went on to say that the last time Thornhill was in a police
vehicle he had, while handcuffed and shackled, (1) slipped his handcuffs, (2) kicked out one of
3

We find that Ms. Brown has adequately pled the third and fourth elements.

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the vehicle’s back doors, (3) fled from police, and (4) car jacked a woman before being caught.
[ECF No. 9 at ¶ 16]. Ms. Brown further alleges she was immediately afraid to ride with
someone who was strong enough to escape from a locked police car and tried not to meet
Thornhill’s eyes or draw attention to herself. [ECF No. 9 at ¶ 17]. This presents a plausible
claim that defendant was aware of a risk of harm and that the harm was a fairly direct result of
his actions.
The second element of the state-created danger test requires Plaintiffs to plausibly plead
that Defendant’s behavior “shocks the conscience.” Bright, 443 F.3d at 281. First, it is important
to note that “negligence is not enough to shock the conscience under any circumstances.”
Schieber v. City of Phila., 320 F.3d 409, 419 (3d Cir.2003). To shock the conscience in the
constitutional sense requires facts suggesting that officials acted at least with “deliberate
indifference” or even with “intent to cause harm.” See Sanford v. Stiles, 456 F.3d 298, 309 (3d
Cir. 2006) (per curiam) (explaining that in situations requiring officials to make decisions
without time to deliberate, the standard is heightened and Plaintiffs must show intent to harm
instead of mere deliberate indifference). Burnett is not alleged to have been acting in a
“hyperpressurized environment”—such as a high speed car chase—that would require intent to
cause harm; he instead operated in an environment where he could make “unhurried judgments”
about the transportation of incarcerated individuals. His allegedly unconstitutional actions are
therefore governed by the deliberate indifference standard. Walter v. Pike Cnty., Pa., 544 F.3d
182, 192 (3d Cir. 2008) (internal citation and quotation marks omitted).
Our Court of Appeals has crafted its definition of deliberate indifference for substantive
due process purposes from Eighth Amendment precedent, explaining that it requires the official
to “ ‘both be aware of facts from which the inference could be drawn that a substantial risk of

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serious harm exists, and ... also draw the inference,’ ” Nicini, 212 F.3d 798, 811 (3d Cir. 2000)
(quoting Farmer, 511 U.S. at 837, 114 S.Ct. 1970); Customers Bank v. Municipality of
Norristown, 942 F.Supp.2d 534, 542 (E.D. Pa. 2013) aff'd, 563 Fed. Appx. 201 (3d Cir. 2014).
The facts alleged in the Amended Complaint suggest that Burnett was deliberately
indifferent, thereby establishing a level of culpability that was conscience shocking. The factual
averments indicate that Burnett was aware that Thornhill was a danger to her, having been told
Thornhill had carjacked another woman in the past after escaping police custody, and despite
this, failed to monitor the goings on in the back seat, and on the return trip placed her back into
the same vehicle with Thornhill, after Burnett knew Thornhill had exposed himself to Ms.
Brown on the way to the magistrate court. We therefore find that plaintiff has sufficiently pled a
claim of state created danger under the Fourteenth Amendment. Defendant’s Motion to Dismiss
will be denied as to Count II.
E. Whether plaintiff has stated a claim for intentional infliction of emotional distress under
Pennsylvania law
At Count III Ms. Brown alleges that Defendants intentionally or recklessly inflicted
severe emotional distress by placing her in the backseat of a police car with Thornhill, whom
they knew was violent, failed to monitor Thornhill during the 45 minute trip, chose to ignore her
attempt to alert them via the rearview mirror, despite noticing her attempts to do so, and forcing
her back into the car with him knowing she was distressed and placing the responsibility for her
safety on another male inmate. [ECF No. 9 at ¶ 83]. She has alleged extreme mental trauma,
anxiety, depression, embarrassment, and humiliation, as well as pain and suffering and economic
damages as a result. [ECF No. 9 at ¶ 85].

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Defendant moves to dismiss Count III on the grounds that Ms. Brown has failed to plead
any conduct which was intentional or which rises to the level of “extreme” and “outrageous.”
“Plaintiff has alleged that Defendants were doing their jobs, which included transporting the two
inmates to their hearings. Plaintiff did not plead that the Defendant was aware of the interaction
between the two inmates, and specifically plead that she only attempted to notify the Defendant
through ‘eye contact’ and ‘facial expressions.’” [ECF No. 30 at 9].
The tort of intentional infliction of emotional distress is defined under Pennsylvania law
as one in which “[o]ne who by extreme and outrageous conduct intentionally or recklessly causes
severe emotional distress to another is subject to liability for such emotional distress, and if
bodily harm to the other results from it, for such bodily harm.” Shaner v. Synthes, 204 F.3d 494,
507 (3d Cir. 2000). Courts are wary of allowing recovery for claims of intentional infliction of
emotional distress, and liability will only be found where “the conduct has been so outrageous in
character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be
regarded as atrocious and utterly intolerable in a civilized community.” Esposito v. Galli, 2006
WL 2322487, at *15 (M.D. Pa. Aug.9, 2006) (quoting Fox v. Horn, 2000 WL 49374, at *9 (E.D.
Pa.2000)). To establish an intentional infliction of emotional distress claim under Pennsylvania
law, a plaintiff must present “objective proof supported by competent medical evidence that the
plaintiff actually suffered the claimed distress.” Id.
After a careful review of the Amended Complaint, we find that Plaintiff has stated a
claim for intentional infliction of emotional distress. Again, we note that she has alleged that
Burnett was put on notice of Thornhill’s dangerous nature, and ignored her request to ride with
someone else even after he knew she was in severe distress and that another vehicle was

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available. She has also adequately pled that she has suffered extreme mental trauma, anxiety,
depression, and the like.
In the alternative Defendant asks that we dismiss the pendent state claim, assuming we
dismiss the federal claims. 28 U.S.C. § 1367. Having ruled that the federal claims are viable, we
will deny the motion to dismiss the pendant state law claim on that particular ground.
V. Conclusion
For the reasons and as more specifically stated herein, we will grant the Motion to
Dismiss in part and deny it in part.
An appropriate order follows.

Dated: January 7, 2016

/s/ Robert C. Mitchell
ROBERT C. MITCHELL
United States Magistrate Judge

Cc: record counsel via CM-ECF

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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA

TARA BROWN,
Plaintiff,
v.
ROBERT BURNETT and JOSEPH
CLEMENTE
,
Defendants.

)
)
)
)
)
)
)
)

Civil Action No. 15-284
Magistrate Judge Robert C. Mitchell

ORDER
AND NOW, to-wit, this 7th day of January, 2016, for the reasons stated in the Opinion
filed contemporaneously herewith, it is hereby ORDERED that Defendant Robert Burnett’s
Motion to Dismiss [ECF No. 29] be and the same hereby is GRANTED IN PART and DENIED
IN PART as follows:
a. The motion to dismiss is GRANTED as to Plaintiff’s claim (Count I) of cruel and
unusual punishment under the Eighth Amendment but leave is granted to amend the complaint
to set forth a claim of failure to protect; AND
b. The motion to dismiss is DENIED as to Counts II and III.
IT IS FURTHER ORDERED THAT Plaintiff is granted leave to file a Second Amended
Complaint on or before January 22, 2016 in order to address pleading deficiencies identified
herein.
/s/ Robert C. Mitchell
ROBERT C. MITCHELL
United States Magistrate Judge

Cc: record counsel via CM-ECF
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