KRUGE v. JOHNSTON et al
Filing
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ORDER granting 12 Motion to Dismiss. The Clerk of Court shall mark this case CLOSED. Signed by Magistrate Judge Cynthia Reed Eddy on 6/8/2015. (bsc)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
NICHOLAS T. KRUGE,
Plaintiff,
v.
MICHAEL JOHNSTON, Warden, and
MARC MASUCCI, Deputy Warden,
Defendants.
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Civil Action No. 3:14-cv-00192
United States Magistrate Judge
Cynthia Reed Eddy
MEMORANDUM OPINION AND ORDER
Presently pending is Defendants’ Motion to Dismiss, with brief in support (ECF Nos. 12
and 13), and Plaintiff’s brief in opposition (ECF No. 15 and 17). For the reasons that follow, the
Motion will be granted.1
Factual Background
At the time Plaintiff, Nicholas T. Kruge, initiated this lawsuit he was incarcerated in the
Blair County Prison, serving an 11-1/2 – 23 month sentence for a probation violation. On March
25, 2015, Kruge filed a Notice of Change Address and notified the Court that he was no longer
incarcerated.
Kruge initiated this action on September 8, 2014, with the filing of a motion to proceed in
forma pauperis and an accompanying complaint. (ECF No. 1.) The motion to proceed in forma
pauperis was granted (ECF No. 3), and the complaint was filed. (ECF No. 4.) The original
complaint remains the operative complaint. Kruge alleges that on August 14, 2014, while he was
incarcerated in the Restricted Housing Unit (“RHU) at the Blair County Prison, Corrections
The parties have consented to jurisdiction by the undersigned Magistrate Judge. See ECF
Nos. 6 and 22.
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Officer Fox refused to feed him “as a way of discipline in retaliation of misconduct” which he
had received. Kruge further alleges that Officer Fox refused to check on him or answer him for a
period of five hours.
Named as defendants are Michael Johnston and Marc Masucci, Warden and Deputy
Warden, respectively, of the Blair County Prison. Kruge alleges that Defendants “allow[] this
treatment in [their] prison.” Additionally, Kruge alleges that Defendants refused to return
grievances or request slips that Plaintiff had sent them.
The Complaint states that “violation of Human rights, cruel and unusual punishment,
violation of inmate rights” is the federal law that was violated. Plaintiff does not specifically
mention the Civil Rights Act, 42 U.S.C. § 1983 in his Complaint, but nevertheless the Complaint
appears to seek vindication of Plaintiff’s federal constitutional rights. Because Plaintiff does not
have a cause of action directly under the Constitution, the Court will construe the Complaint as
one invoking the Court’s jurisdiction pursuant to Section 1983. 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)).
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 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,
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555 (3d Cir.1969) (petition prepared by a prisoner may be inartfully drawn and should be read
“with a measure of tolerance”).
In a § 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).
2.
Motion to Dismiss Pursuant to Rule 12(b)(6) - The Legal Standard
A motion to dismiss pursuant to Rule 12(b)(6) challenges the legal sufficiently of the
complaint. When reviewing a motion to dismiss, 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
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speculative level.” 550 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 conduct a threestep analysis when considering 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).
The United States Court of Appeals for the Third Circuit has held that, in civil rights
cases, a court must give a plaintiff the opportunity to amend a deficient complaint - regardless of
whether the plaintiff requests to do so - when dismissing a case for failure to state a claim, unless
doing so would be inequitable or futile. See Fletcher-Harlee Corp. v. Pote Concrete Contractors,
Inc., 482 F.3d 247, 251 (3d Cir. 2007).
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Discussion
It is not clear from the Complaint whether Kruge is suing Defendants in their individual
capacities, official capacities, or both.
A.
Individual Capacity
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 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 (1981); Kost v. Kozakiewicz, 1 F.3d 176, 184 (3d Cir.1993).
Additionally, each named defendant must be shown, via the complaint's allegations, to
have been personally involved in the events or occurrences which underlie a claim. See Rizzo v.
Goode, 423 U.S. 362 (1976); Hampton v. Holmesburg Prison Officials, 546 F.2d 1077 (3d Cir.
1976). Claims brought under § 1983 cannot be premised on a theory of respondeat superior.
Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988) As explained in Rode:
A defendant in a civil rights action must have personal involvement in the alleged
wrongs. . . . [P]ersonal involvement 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.
Rode, 845 F.2d at 1207. The Court notes that Kruge fails to adequately establish the personal
involvement of either defendant in his complaint. Plaintiff has not alleged any facts to show that
specific acts or omissions by Warden Johnston or Deputy Warden Masucci allowed or had
anything to do with Corrections Officer Fox refusing to feed Kruge or failing to check on Kruge
or answer him for a period of five hours.
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Additionally, Kruge has not alleged that either Defendant personally established and / or
maintained any policy or procedure, which deprived Kruge of his constitutional rights. See
Barkes v. First Correctional Medical, Inc., 766 F.3d 307, 316 (3d Cir. 2014), rev’d on other
grounds sub nom., Taylor v. Barkes, -- S.Ct. --, 2015 WL 2464055 (June 1, 2015).
As a result, the Complaint does not contain facts setting forth a plausible claim that either
Defendant Johnston or Defendant Masucci can be held liable in any personal or supervisory role
for any alleged violation of Harris’ constitutional rights. See Iqbal, 556 U.S. at 678-79.
B.
Official Capacity
“Suits against municipal employees in their official capacities are ‘treated as claims
against the municipal entities that employ these individuals’.” Lakits v. York, 258 F. Supp.2d
401, 405 (E.D.Pa. 2003) (quoting Smith v. Sch. Dist. of Phila., 112 F. Supp.2d 417, 425 (E.D.Pa.
2000.)) “This is because, in a suit against a municipal official in his official capacity, the real
party in interest is the municipal entity and not the named official.” Id. (citations omitted).
Thus, “[w]here a suit is brought against a public officer in his official capacity, the suit is treated
as if the suit were brought against the governmental entity of which he is an officer.” Mitros v.
Cooke, 170 F. Supp.2d 504, 506 (E.D.Pa. 2001) (citation omitted).
The complaint does not allege that a Blair County policy or custom caused a violation of
Kruge’s rights. The Complaint does not allege that Blair County, through Defendants in their
official capacities, and through some official policy or custom, endangered or harmed Kruge in
any fashion.
Accordingly, the Court finds that the complaint fails to state a plausible policy-or-custom
claim. See Monell v. Dep’t of Soc. Serv. of City of New York, 436 U.S. 658, 690-91 (1978);
Iqbal, 556 U.S. at 678-79.
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C.
Failure to State a Claim
In the alternative, the Court finds that the allegations of the Complaint are insufficient to
establish the violation of the Eighth Amendment.
Under the Eighth Amendment, “prison
officials must ensure that inmates receive adequate food, clothing, shelter, and medical care, and
must ‘take reasonable measures to guarantee the safety of the inmates.’ ” Farmer v. Brennan,
511 U.S. 825, 832 (1994) (quoting Hudson v. Palmer, 468 U.S. 517, 526–27 (1984)). “Prison
conditions may amount to cruel and unusual punishment if they cause ‘unquestioned and serious
deprivations of basic human needs . . . [that] deprive inmates of the minimal civilized measure of
life's necessities.’ ” Tillman v. Lebanon Cnty. Corr. Facility, 221 F.3d 410, 417–18 (3d Cir.
2000) (quoting Rhodes v. Chapman, 452 U.S. 337, 347 (1981)) (alteration and omission in
original). “To demonstrate a deprivation of his basic human needs, a plaintiff must show a
sufficiently serious objective deprivation, and that a prison official subjectively acted with a
sufficiently culpable state of mind, i.e., deliberate indifference.” Id. at 418 (citation omitted).
Kruge claims that he “went from lunch on 8-12-2014 to breakfast on 8-13-2014 with no
meal.” (ECF No. 2.) Food deprivation claims are conditions of confinement claims. Therefore,
Plaintiff must allege facts sufficient to meet the two-prong Farmer test. The United States Court
of Appeals for the Third Circuit has recognized that “only a substantial deprivation of food to a
prisoner sets forth a viable Eighth Amendment claim.” Lindsey v. O’Connor, 327 F. App’x 319,
321 (3d Cir. 2009) (emphasis added). However, when it is alleged that prison officials have, in a
systematic way, denied a series of meals to an inmate over a span of weeks, the Eighth
Amendment’s prohibition against cruel and unusual punishment is implicated.
Kruge’s Complaint fails to allege sufficient facts from which it could be inferred that he
has suffered a substantial deprivation of food or that either of the Defendants acted with the
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requisite culpable state of mind or engaged in a systematic way to deny him a series of meals
over a span of weeks.
See Zanders v. Ferko, 439 F. App’x 158 (3d Cir. 2011) (alleged
deprivation of three means over two days fails to rise to the level of a constitutional violation
(citing Foster v. Runnels, 554 F.3d 807, 812-13 (9th Cir. 2009) (holding denial of 16 meals over
23-day period was sufficiently serious deprivation for purposes of the Eighth Amendment but
denial of meals on two isolated occurrences did not rise to the level of a constitutional
violation.). See Iqbal, 556 U.S. at 678 (noting that the pleading standard “demands more than an
unadorned, the-defendant-unlawfully-harmed-me accusation.”)
Similarly, Kruge’s claims that Defendants violated his constitutional rights when they
refused to return requests slips or grievances and/or returned them unsigned and unanswered fail
to state a cognizable claim under 42 U.S.C. § 1983. It is well established that inmates do not
have a constitutional right to prison grievance procedures. See Jones v. North Carolina Prisoners
Labor Unions, 433 U.S. 119, 137–38 (1977); Speight v. Sims, No. 08–2038, 2008 WL 2600723
at *1 (3d. Cir. Jun 30, 2008) (citing Massey v. Helman, 259 F.3d 641, 647 (7th Cir. 2001)
(“[T]he existence of a prison grievance procedure confers no liberty interest on a prisoner.”)
Consequently, any attempt by Plaintiff to establish liability against the Warden and
Deputy Warden solely based upon their substance or lack of response to his institutional
grievances does not by itself support a constitutional claim. See also Alexander v. Gennarini, 144
Fed. Appx. 924, 925 (3d Cir. 2005) (involvement in post-incident grievance process not a basis
for § 1983 liability).
Futility
If a civil rights complaint is subject to Rule 12(b)(6) dismissal, a district court must
permit a curative amendment unless such an amendment would be inequitable or futile. Fletcher-
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Harlee Corp. v. Pote Concrete Contractors, Inc., 482 F.3d 247, 251 (3d Cir. 2007).
A district
court must provide the plaintiff with this opportunity even if the plaintiff does not seek leave to
amend. Id.
Given that the Court has already provided Plaintiff with an opportunity to amend, (see
ECF No. 14), the Court is not required to provide him with further leave to amend as further
amendment would be futile.
Shelley v. Patrick, 481 F. App’x 34, 36 (3d Cir. 2012).
Accordingly, the Court will not grant Plaintiff leave to amend as it would be futile.
Conclusion
For the reasons stated above, the Motion to Dismiss filed by Defendants Michael
Johnston and Marc Masucci (ECF No. 12) will be granted.
AND NOW, this 8th day of June, 2015:
It is hereby ORDERED that Defendants’ Motion to Dismiss is GRANTED in its
entirety for failure to state a claim and Plaintiff’s claims are dismissed with prejudice as a matter
of law.
IT IS FURTHER ORDERED that the Clerk of Court mark this case CLOSED.
AND IT IS FURTHER ORDERED that pursuant to Rule 4(a)(1) of the Federal Rules
of Appellate Procedure, Plaintiff has thirty (30) days to file a notice of appeal as provided by
Rule 3 of the Federal Rules of Appellate Procedure.
/s Cynthia Reed Eddy
Cynthia Reed Eddy
United States Magistrate Judge
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cc:
NICHOLAS T. KRUGE
1165 Creekside Drive
Altoona, PA 16601
Suzanne B. Merrick
Thomas, Thomas & Hafer LLP
(via ECF electronic notification)
Lauren N. Woleslagle
Thomas, Thomas & Hafer, LLP
(via ECF electronic notification)
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