Anderson v. Folino

KEITH ANDERSON, Plaintiff,

v.LOUIS FOLINO, et al, Defendants.

Civil Action No. 10-937

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA

August 22, 2011

Chief Judge Lancaster

Magistrate Judge Bissoon

MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

I. RECOMMENDATION

For the reasons that follow, it is respectfully recommended that Defendant Gibbs's motion to dismiss (Doc. 36) be granted in part and denied in part. It is further recommended that the partial motion to dismiss filed by Defendants Bogden, Bowman, Donna Doe, Roxanna Doe, Duke, Folino, Grimm, Kerfelt, McAnany, Mega, Nelson, Rauenswinder, Rush, Santoya, Stump, Tanner, Walter, and Wilson ("DOC Defendants") (Doc. 42) be granted in part and denied in part.

II. REPORT

Keith Anderson ("Plaintiff") is a state inmate currently incarcerated at the State Correctional Institution at Rockview ("SCI-Rockview"), in Bellefonte, Pennsylvania. Plaintiff brings this suit pursuant to the Civil Rights Act of 1871, 42 U.S.C § 1983, et seq., alleging that, while he was incarcerated at the State Correctional Institution at Greene ("SCI-Greene"), his rights under the Eighth Amendment to the Constitution of the United States were violated on multiple occasions by a host of Defendants. See generally Compl. (Doc. 3). Plaintiff also seeks redress under multiple provisions of the Pennsylvania Constitution, and brings variousPennsylvania tort claims as well. Plaintiff explicitly states that he is suing Defendants in their individual and official capacities. Id. at 12.

This civil action commenced with the receipt of the complaint on July 15, 2010. (Doc. 1-2). Plaintiff was granted leave to proceed in forma pauperis ("IFP") on July 16, 2010. (Doc. 2). Defendant Gibbs filed a motion to dismiss on December 3, 2010. (Doc. 36). The DOC Defendants filed a partial motion to dismiss on December 22, 2010. (Doc. 42). Plaintiff responded to both motions on January 14, 2011 (Docs. 45 and 46). These motions are ripe for disposition.

A. Plaintiff's Factual Allegations and Legal Claims

Plaintiff alleges that, on July 16, 2009, Defendant Shaffer improperly denied him outdoor recreation. (Doc. 3) ¶¶ 21-23. Plaintiff filed a grievance with respect to this incident - however, he alleges that Defendant Bogden intentionally destroyed the grievance form, or failed to process it, on July 17, 2009, as part of a conspiracy with Defendant Shaffer.¹ Id. ¶¶ 28-31. Plaintiff alleges that this violated his rights under the Fifth and Fourteenth Amendments to the Constitution of the United States, as well as Article I, §§ 20 and 26 of the Pennsylvania Constitution. Id. ¶¶ 30-31. Plaintiff further alleges that Defendant Shaffer's denial of that single period of outdoor recreation to Plaintiff constituted the tort of "malfeasance/nonfeasance[.]" Id.¶ 31. Plaintiff alleges that he submitted a second grievance - grievance number 281776 -concerning the above incident on July 22, 2009. Id. ¶ 33.

Plaintiff next asserts that, on July 22, 2009, he was being escorted to his cell by Defendant Shaffer. Plaintiff alleges that during this encounter, Defendant Shaffer grabbed Plaintiff's collar and pulled it "extremely tight to where said collar was choking [P]laintiff, at which time [P]laintiff felt very light headed and dizzy." Id. ¶ 33. While removing Plaintiff's handcuff's at his cell, Defendant Shaffer allegedly "pull[ed] [P]laintiff's arms extremely tightly and forcefully, which caused [P]laintiff's hands to grind against the door wicket," allegedly bruising and abrading Plaintiff's hands. Id. ¶ 35. Defendant Shaffer also allegedly told Plaintiff "[k]eep filing you're [sic] fucking grievances and I'm gonna [sic] knock your black raghead teeth out by slamming your face off the fucking concrete floor." Id. ¶ 36. Plaintiff asserts that Defendant Shaffer's alleged acts constituted violations of the Eighth Amendment's prohibition of cruel and unusual punishment, Article I, § 13 of the Pennsylvania Constitution, and various state tort laws. Id. ¶¶ 35, 138. Plaintiff also claims - somewhat obliquely, that these acts were in retaliation for the filing of his initial grievance against Defendant Shaffer. Id. ¶ 38. Plaintiff filed grievance number 282575 with respect to this alleged incident on July 28, 2009. Id. ¶ 38. Plaintiff alleges that Defendant Tanner, who allegedly was assigned the duty to investigate this grievance, failed to do so properly. Id. ¶ 39. Plaintiff further alleges that Defendant Shaffer's supervisors - including Defendant Folino - failed to take any corrective action in spite of the complaints contained in these grievances. Id. ¶ 40.

On August 11, 2009, Defendant Shaffer allegedly interfered with Plaintiff's attempted filing of a third-level appeal from the denial of grievance number 281776. Id. ¶¶ 43, 46.Similarly, Defendant Nelson allegedly interfered with the filing of Plaintiff's final appeal from the denial of grievance number 282575 on August 18, 2009. Id. ¶ 47-48, 50.

Next, Plaintiff alleges that Defendant Shaffer denied him a telephone call on September 17, 2009. Id. 52. Also on that date, Defendant Shaffer allegedly told Plaintiff "'[y]ou'll get yours sooner or later[;]'" "'I'll get my shot soon[;]'" and that he "'didn't [sic] care who my [sic] rat ass told.'" Id. ¶¶ 53-54. Plaintiff filed grievance number 288587 with respect to this alleged incident on September 14, 2009.² Id. ¶ 56.

Also on September 14, 2009, Plaintiff allegedly was waiting to be taken out of his cell for a period of outdoor recreation at 7:00 A.M. Id. ¶ 57. He was "processed out" by Defendants Stump and Rush, and Defendant Bowman allegedly opened Plaintiff's cell door from a control panel. Id. ¶ 59. Defendant Stump escorted Plaintiff to Defendant Shaffer, who would escort Plaintiff to the yard. Id. ¶¶ 61-62. Plaintiff told Defendant Stump at this time that he wanted to return to his cell, and did not want to be transported by Defendant Shaffer. Id. ¶ 63. Defendant Stump allegedly responded "'[n]ot this time,' and [P]laintiff was forcefully tugged down the stairs by [D]efendant Shaffer." Id. ¶ 64. Plaintiff alleges that, as they were descending the staircase, Defendant Shaffer grabbed Plaintiff's jumpsuit with enough force to choke him. Id. ¶ 65. Defendant Rauenswinder met them at the bottom of the stairs, and assisted in escorting Plaintiff to the yard. Id. ¶ 67. As Plaintiff was led out the door by Defendant Shaffer, Defendant Rauenswinder allegedly stood in front of the window on the yard, thus obscuring its view Id. ¶ 67.

Once on the yard, Defendant Shaffer allegedly attacked Plaintiff, punching him in the head and face. Id. ¶ 68. Plaintiff attempted to "slide down [a] wall, but fell over due to beinghandcuffed and losing his balance . . . split[ting] his head open of [sic] the brick wall, and further injuring his shoulder." Id. ¶ 72. Plaintiff also alleges that he injured his spine during the attack. Id. ¶ 73. As the alleged assault continued, Defendant Shaffer began to choke Plaintiff while he was on the ground, and continued striking him for about five minutes, when Defendant Rauenswinder allegedly called Defendant Shaffer's name, telling him "'[i]t's time to go.'" Id. ¶¶ 74-76. At this point the alleged assault ceased, and Defendant Bowman began letting other prisoners out onto the yard. Id. ¶ 78.

Upon returning to his cell, Plaintiff pressed the emergency call button and reported to Defendant Bowman - who answered the call - that he had been assaulted by Defendant Shaffer. Plaintiff asked for medical attention. Id. ¶ 84. Plaintiff avers that he was bleeding from his face onto his t-shirt, and that his face was swollen. Id. ¶ 85. About 20 minutes later, he was escorted to the medical department, where Defendants McAnany and Donna Doe took several photographs of Plaintiff's injuries. Id. ¶ 87. Plaintiff alleges that he was given "no actual medical treatment" at that time - despite his requests for "pain medication and/or an ice bag for his facial swelling." Id. ¶ 87-88. After his examination, Plaintiff was placed in a so-called "hard cell[,]" where he was housed until September 29, 2009. Id. ¶ 89, 117.

Plaintiff alleges that he requested medical attention numerous times during his stay in the hard cell. His initial request was made to Defendants Mega and Grimm less than one hour after the alleged assault - both of whom denied Plaintiff. Id. ¶ 89. Shortly thereafter, Plaintiff called out to Defendants Walter and Grimm, informing them that he had been assaulted by Defendant Shaffer and "wanted to see a doctor for a meaningful medical treatment." Id. ¶ 91. These Defendants made a note of Plaintiff's name and inmate number, but informed him that he wouldhave to sign up for sick call. Id. ¶ 92. Plaintiff requested a sick call slip, but was told that he would not be provided one until September 16, 2009, when "paperwork was passed out[.]" Id.

At approximately 2:41 P.M. on September 14, 2009, Plaintiff saw Defendant Roxanna Doe, called her to his cell, complained of the alleged assault, and requested medical attention. Id. ¶ 94. She allegedly took his name and inmate number, but did not provide treatment. Id. ¶ 96.

On September 15, 2009, Plaintiff asked Defendant Duke for a sick call slip, but was again told that he would have to wait until the next day. Id. ¶ 102. Later that day, Plaintiff called Defendants Grimm and Donna Doe to his cell and requested medical attention. Id. ¶ 104. Defendant Donna again took Plaintiff's name, and Defendant Grimm gave Plaintiff two band aids and two alcohol pads. Id. ¶ 106. Plaintiff alleges that, when he asked Defendant Grimm why he was not being provided with medical treatment, Defendant Grimm responded "' [c]ome on Anderson, you have been here long enough to know how it works with things like this, administration sticks together.'" Id. ¶ 107-08.

Plaintiff alleges that Lieutenant Price - a non-party to this suit - came to Plaintiff's cell on September 15, 2009, and asked him what...