TUSTIN v. STRAWN et al

Filing 41

ORDER granting in part and denying in part 28 Partial Motion to Dismiss for Failure to State a Claim. Defendants shall file an Answer by November 30, 2018. Signed by Magistrate Judge Cynthia Reed Eddy on 11/15/2018. (bsc)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
MICHAEL LEE TUSTIN,
Plaintiff,
v.
WARDEN EDWARD STRAWN, et al,
Defendants.

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Civil Action No. 2: 18-cv-0505
Chief United States Magistrate Judge
Cynthia Reed Eddy

MEMORANDUM OPINION AND ORDER1
Plaintiff, Michael Lee Tustin, is a pre-trial detainee who is in custody at the Washington
County Correctional Facility, in Washington, PA. Through his Amended Complaint, Plaintiff
alleges that on March 20, 2018, he was injured when Captain Lehr and C.O. Jordan grabbed his
arms and twisted them behind his back and “pushed his head into the wall.”2 Further, Plaintiff
also alleges that from February 20, 2018, through April 20, 2018, his requests, to see a dentist
were ignored; that he has encountered issues in receiving his commissary orders; that there are a
number of issues involving the food service (i.e., mealworms in his breakfast cereal); unsanitary
lunch trays; insufficient portions of food servings; and a number of issues concerning unsanitary
cell conditions. See Statement of Facts, pp. 7 - 12; see also Paragraph VI of the Amended
Complaint.

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In accordance with the provisions of 28 U.S.C. § 636(c)(1), all parties have voluntarily
consented to have a United States Magistrate Judge conduct proceedings in this case, including
trial and the entry of a final judgment. See ECF Nos. 7 and 39.
2

In his response to the motion to dismiss, Plaintiff states that he was assaulted by
correctional officers on July 26, 2018, after the filing of this lawsuit. Response at 37-1 at 1.
Plaintiff is again advised that if he believes he has been subjected to violations that are unrelated
to the claims of the amended complaint, he should file a separate lawsuit.
1

Defendants filed the pending partial motion to dismiss (ECF No. 28), to which Plaintiff
has responded in opposition. (ECF No. 37). Defendants argue that the claims against the
supervisory defendants should be dismissed because Plaintiff has failed to adequately allege the
personal involvement of these defendants.

Defendants also seek to have Plaintiff’s claims

brought under the Eighth Amendment, Thirteenth Amendment, and First Amendment dismissed.
Standard of Review
In considering a Rule 12(b)(6) motion, federal courts require notice pleading, as opposed
to the heightened pleading of fact pleading. Fed.R.Civ.P. 8(a)(2) requires only “ ‘a short and
plain statement of the claim showing that the pleader is entitled to relief,’ in order to ‘give the
defendant fair notice of what the . . . claim is and the grounds on which it rests’.” Bell Atlantic
Corp. v. Twombly, 550 U.S. 554, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).
Building upon the landmark United States Supreme Court decisions in Twombly and
Ashcroft v. Iqbal, 556 U.S. 662 (2009), the United States Court of Appeals for the Third Circuit
explained that a district court must undertake the following three steps to determine the
sufficiency of a complaint:
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.” Third,
“whe[n] 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.” This means that our inquiry is normally broken into three parts: (1)
identifying the elements of the claim (2) reviewing the Complaint to strike
conclusory allegations, and then (3) looking at the well-pleading components of
the Complaint and evaluating whether all of the elements identified in part one of
the inquiry are sufficiently alleged.
Malleus v. George, 641 F.3d 560, 563 (3d Cir. 2011)(quoting Iqbal, 556 U.S. at 675, 679).
The third step of the sequential evaluation requires this Court to consider the specific
nature of the claims presented and to determine whether the facts pled to substantiate the claims
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are sufficient to show a “plausible claim for relief.” Fowler v. UPMC Shadyside, 578 F.3d 203,
210 (3d Cir. 2009). “While legal conclusions can provide the framework of a complaint, they
must be supported by factual allegations.” Id. at 210-11; see also Malleus, 641 F.3d at 560.
This Court may not dismiss a complaint merely because it appears unlikely or improbable
that plaintiff can prove the facts alleged or will ultimately prevail on the merits. Twombly, 550
U.S. at 563 n.3. Instead, this Court must ask whether the facts alleged raise a reasonable
expectation that discovery will reveal evidence of the necessary elements. Id. at 556. Generally
speaking, a complaint that provides adequate facts to establish “how, when, and where” will
survive a motion to dismiss. Fowler, 578 F.3d at 212. In short, a motion to dismiss should not
be granted if a party alleges facts, which could, if established at trial, entitle him or her to relief.
Twombly, 550 U.S at 563 n. 8.
Discussion
Before turning the merits of Defendants’ motion, Plaintiff is cautioned that, as a litigant
in this Court, he is expected to behave with appropriate civility, no matter his personal opinion of
the other litigants, and no matter how strongly that opinion is held. The use of profanity will not
be tolerated. Plaintiff is advised that the Court will strike future pleadings containing any
profanity or similarly disparaging comments or statements directed towards the other litigants.
1.

Supervisory Claims3

The United States Court of Appeals for the Third Circuit has explained that there are two
theories of supervisory liability in a Section 1983 action: (1) supervisors can be liable in their
official capacity if they established and maintained a policy, practice, or custom which directly
caused constitutional harm; or, (2) they can be liable personally if they participated in violating
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The named supervisors are Warden Strawn, Deputy Warden Cain (identified by Plaintiff
as Caine), Deputy Warden Waugh, Major Cramer, and Cheryl McGavitt.
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the plaintiff’s rights, directed others to violate them, or, as persons in charge, had knowledge of
and acquiesced in their subordinates’ violations. Santiago v. Warmister Township, 629 F.3d 121,
128-29 n.4 (3d Cir. 2010). All Defendants in this case are sued in their individual capacities. See
Amended Complaint, at pp. 3 - 6. (ECF No. 10).
The Court finds that Plaintiff has alleged enough to create plausible supervisory liability
claims against these defendants. The Court recognizes that discovery may well reveal that the
alleged conduct does not give rise to supervisory liability claims, but at this early stage of the
litigation, the allegations of the Amended Complaint must be accepted as true and all reasonable
inferences must be drawn in Plaintiff’s favor. Defendants’ request to dismiss the supervisory
liability claims is DENIED.
2.

Eighth Amendment Claims

Defendants argue that because Plaintiff is a pretrial detainee, his claims are governed by
the Fourteenth Amendment, not the Eighth Amendment, and dismissal of his Eighth Amendment
claims is warranted. See City of Revere v. Mass. Gen Hosp., 463 U.S. 239, 244 (1983); Bell v.
Wolfish,441 U.S. 520, 531 (1979).
Defendants are correct that the Eighth Amendment prohibition against cruel and unusual
punishment is inapplicable to pretrial detainees, who are instead protected by the due process
rights secured by the Fourteenth Amendment. However, “[t]he Supreme Court has concluded
that the Fourteenth Amendment affords pretrial detainees protections ‘at least as great as
the Eighth Amendment protections available to a convicted prisoner,’ ” and the Court of Appeals
for the Third Circuit evaluates excessive force and medical indifference claims of both pretrial
detainees and convicted prisoners under the same standard. See, e.g., Natale v. Camden Cty.
Corr. Facility, 318 F.3d 575, 581 (3d Cir. 2003) (quoting City of Revere, 463 U.S. at 244)). As

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there is no confusion as to the applicable standard, and no prejudice to Defendants, the Court will
not elevate form over substance.

Therefore, Defendants’ request to dismiss the Eighth

Amendment claims is DENIED.
3.

Thirteenth Amendment Claims

The Thirteenth Amendment, the prohibition against involuntary servitude, has no
applicability to the facts as alleged in Plaintiff’s Amended Complaint. Therefore, Defendants’
request to dismiss the Thirteenth Amendment claims is GRANTED.
4.

First Amendment Claims

In his Amended Complaint, Plaintiff states that his First Amendment rights have been
violated but he gives no specifics as to how his First Amendment rights have been violated.
Although there is not a heightened pleading standard in civil rights cases and liberal standards
are to be applied to pro se pleadings, a § 1983 complaint still must comply with the Federal
Rules of Civil Procedure, and must contain at least a modicum of factual specificity. In the
instant case, Plaintiff has stated in wholly conclusory terms that his First Amendment rights were
violated.

Under these circumstances, Defendants’ request to dismiss Plaintiff’s First

Amendment claim is GRANTED.
5.

Request to Strike Plaintiff’s Claims for Relief

Defendants move to strike Plaintiff’s unliquidated damage request. Western District of
Pennsylvania Local Rule 8 provides,
No party shall set forth in a pleading originally filed with this Court a specific
dollar amount of unliquidated damages in a pleading except as may be necessary
to invoke the diversity jurisdiction of the Court or to otherwise comply with any
rule, statute or regulation which requires that a specific amount in controversy be
pled in order to state a claim for relief or to invoke the jurisdiction of the Court.

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LCvR8. The Court agrees that Plaintiff’s claim for relief violates this rule and should be stricken
from the Amended Complaint. Thus, Defendants’ request is GRANTED.
6.

ECF Nos. 16 and 19

Defendants request that the Court disregard or specifically order that these documents
need not be addressed by Defendants. The Court finds it unnecessary to further address these
filings. On August 14, 2018, the Court entered an Order advising Plaintiff that it was not
appropriate to add entirely new claims by filing a “Declaration” (ECF No. 20) and on August 29,
2018, the Court advised Plaintiff that his filings at ECF Nos. 16, 19, and 26, were unmanageable
and again advised Plaintiff that to the extent he believes he has been subjected to violations
unrelated to the claims of his amended complaint, he should file new separate complaints
addressing each violation. (ECF No. 27).
ORDER
For the reasons set forth above, the Motion to Dismiss will be granted in part and denied in
part.

Defendants shall file an Answer on or before November 30, 2018, pursuant to

Fed.R.Civ.P. 12(a)(4)(A).
IT SO ORDERED this 15th day of November, 2018.
s/ Cynthia Reed Eddy
Cynthia Reed Eddy
Chief United States Magistrate Judge
cc:

MICHAEL LEE TUSTIN
Washington County Correctional Facility
100 West Cherry Avenue
Washington, PA 15301
(via U.S. First Class Mail)
Paul D. Krepps
Marshall, Dennehey, Warner, Coleman & Goggin
(via ECF electronic notification)
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