Palmer v. Watterson, Case No. 1:20-cv-10

ALONZO PALMER, Plaintiff v. C.O. WATTERSON, et al., Defendants

Case No. 1:20-cv-10

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA

January 29, 2021

SUSAN PARDISE BAXTER UNITED STATES DISTRICT JUDGE

RICHARD A. LANZILLO UNITED STATES MAGISTRATE JUDGE

REPORT AND RECOMMENDATION ON DEFENDANTS' MOTION TO DISMISS THE AMENDED COMPLAINT AND PLAINTIFF'S MOTIONS FOR LEAVE TO AMEND AMENDED COMPLAINT

ECF NO. 31

I. Recommendation

This matter was referred to the undersigned for a Report and Recommendation in accordance with the Federal Magistrates Act, 28 U.S.C. § 636, and Local Civil Rule 72.D. It is respectfully recommended that Defendants' Motion to Dismiss (ECF No. 31) be GRANTED in part, and DENIED in part. It should be granted as to all claims except Plaintiff's Eighth Amendment claim against C.O. Kennedy and C.O. Ferringer. Plaintiff's Eighth Amendment claim against the remaining Defendants and his conspiracy claim should be dismissed without prejudice as Plaintiff may be able to cure the pleading deficiencies of these claims by amendment. It is further recommended that his Fifth Amendment, Fourteenth Amendment, Americans with Disabilities Act, Rehabilitation Act, and negligence claims be dismissed with prejudice, as they fail as a matter of law and any attempt to amend these claims would be futile. Plaintiff, however, should be granted leave to file an amended complaint asserting ADA and Rehabilitation Act claims against an entity amenable to suit under those statutes or an official of such entity in his or her official capacity.

II. Procedural Background

Acting pro se, Plaintiff Alonzo Palmer (Palmer), a prisoner in the custody of the DOC, commenced this civil rights and negligence action on January 21, 2020, by filing a motion for in forma pauperis status. ECF No. 1. After correcting a procedural error with his IFP application, with the Court's permission, Palmer filed his initial Complaint. ECF No. 8. He then filed an Amended Complaint on August 11, 2020, which is the operative Complaint. See ECF Nos. 23, 26, 29. The Amended Complaint names eight employees of the DOC as Defendants: C.O. Watterson, C.O. Mason, Sargent Reddinger, C.O. D. Perry, C.O. R. Swanson, C.O. Kennedy, Lieutenant Duffy, and C.O. Ferringer. All Defendants have moved to dismiss the Amended Complaint pursuant to Fed. R. Civ. P. 12(b)(6). ECF No. 31. The motion has been fully briefed and is ripe for review.

III. Legal Standards

A. Motion to Dismiss

A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the legal sufficiency of the complaint. Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993). In deciding a motion to dismiss, a court is not opining on whether a plaintiff is likely to prevail on the merits; instead, the plaintiff must only present factual allegations sufficient "to raise a right to relief above the speculative level." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 167 L. Ed.2d 929 (2007) (citing 5 C. Wright & A. Miller, Federal Practice and Procedure § 1216, pp. 235-236 (3d ed. 2004)). See also Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 173 L. Ed.2d 868 (2009). A complaint should only be dismissed under Rule 12(b)(6) if it fails to allege "enough facts to state a claim to relief that is plausible on its face." Twombly, 550 U.S. at 570, 127 S. Ct. 1955 (rejecting the traditional Rule 12(b)(6) standard established in Conley v. Gibson, 355 U.S. 41, 78 S. Ct. 99, 2 L. Ed.2d 80 (1957)). In making this determination, the court must accept as true all well-pleaded factual allegations in thecomplaint and views them in a light most favorable to the plaintiff. U.S. Express Lines Ltd. v. Higgins, 281 F.3d 383, 388 (3d Cir. 2002).

While a complaint does not need detailed factual allegations to survive a motion to dismiss, a complaint must provide more than labels and conclusions. Twombly, 550 U.S. at 555, 127 S. Ct. 1955. A "formulaic recitation of the elements of a cause of action will not do." Id. (citing Papasan v. Allain, 478 U.S. 265, 286, 106 S. Ct. 2932, 92 L. Ed.2d 209 (1986)). Moreover, a court need not accept inferences drawn by a plaintiff if they are unsupported by the facts in the complaint. See Cal. Pub. Emps.' Ret. Sys. v. 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 disguised as factual allegations. Twombly, 550 U.S. at 555, 127 S. Ct. 1955. See also McTernan v. City of York, Pa., 577 F.3d 521, 531 (3d Cir. 2009) ("The tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions").

Expounding on the Twombly/Iqbal line of cases, the Third Circuit has articulated the following three-step approach:

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." Finally, "where 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."

Burtch v. Milberg Factors, Inc., 662 F.3d 212, 221 (3d Cir. 2011) (quoting Santiago v. Warminster Twp., 629 F.3d 121, 130 (3d Cir. 2010)). This determination is "a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Iqbal, 556 U.S. at 679, 129 S. Ct. 1937.

B. Pro Se Pleadings

For purposes of a motion to dismiss, a court must employ less stringent standards in considering pro se pleadings than when judging the work product of an attorney. Haines v. Kerner, 404 U.S. 519, 520-21, 92 S. Ct. 594, 30 L.Ed.2d 652 (1972). In a § 1983 action, the court must "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."). Despite 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); Riddle v. Mondragon, 83 F.3d 1197, 1202 (10th Cir. 1996). Finally, the United States Court of Appeals for the Third Circuit in Phillips v. County of Allegheny has ruled that if a district court is dismissing a claim under Fed. R. Civ. P. 12(b)(6) in a civil rights case, it must sua sponte "permit a curative amendment unless such an amendment would be inequitable or futile." 515 F.3d 224, 245 (3d Cir. 2008).

IV. Amended Complaint

Palmer's Amended Complaint alleges the following facts, all of which are accepted as true for purposes of Defendants' motion:

Palmer is an amputee (right foot) whose prior doctor certified him for disability accommodations. ECF No. 29 ¶¶ 13, 17. On January 29, 2019, Palmer was transferred from SCI Greene to SCI Forrest. Id. ¶ 16. While housed at SCI Greene, he was assigned a designated handicap accessible cell in accordance with an unnamed physician's medical opinion. Id. ¶ 17. Although he was initially placed in a handicap accessible cell at SCI Forrest, he was moved to astandard cell two days later, on January 31, 2019. Id. ¶¶ 18-19. On that date, the following interaction occurred:

• "[A]round about 9:00 a.m., Reddinger informed Palmer via the cell's intercom to pack his personal property, because Palmer was moving to a non-handicap cell . . . [, and he] complied." Id. ¶ 19.

• Fifteen minutes later, "Watterson and Mason approached Palmer at cell 11 on K/D pad. Palmer was stripped searched by the aforesaid Prison officials [and] cuffed behind the back by Watterson." Id. ¶ 20.

• Mason ordered the cell opened and the aforementioned prison officials escorted Palmer to his new cell. Id.

• "While in route to said pod and cell, Palmer inquired as to why he was being assigned to a non-handicap cell." Id. ¶ 21.

• Waterson responded, "I'm only doing what I was told . . don't care what cell you're in . . ." Id.

• Mason likewise responded, "Yeah, Palmer, it's the truth . . . we were in a meeting and this is the move we agreed upon." Id.

• Palmer replied that he could only be assigned to a handicap cell. Id. ¶ 22.

• Watterson advised that he should talk to Perry or Swanson, and Mason explained, "Our policy say[s] we can put handicap inmates in any cell that is operable." Id.

A month later, Palmer spoke with Perry and Swanson and inquired why he was moved from a handicap cell. Id. ¶ 24. Palmer explained that without handicap accommodations, he would be more susceptible to hurting himself when "cleaning himself" or using the restroom. Id. Perry responded, "We're not giving you any special cell. . . . We know your story, but the DOC Policy states we can house handicap inmates in non-handicap cells. Stop your bitching. . . . Your problems are small." Id. ¶ 25. Swanson concurred, "He's (Perry), my boss and the RHN staff understand and agree with the decision of moving you out of the handicap cell." Id. ¶ 26.

The next day, February 27, 2019, Palmer again raised his concerns with Watterson and Reddinger. Reddinger responded, "You don't tell us what cell you go to. We tell you what cell youcan go to. Shut up and lie down. Didn't Perry address this?" Id. ¶ 28. Watterson concurred, "Well said." Id. ¶ 29. Two days later, Ferringer and Kennedy escorted Palmer to a non-handicap accessible shower. Id. ¶¶ 30-33. During the commute, Palmer remonstrated, "Are you guys taking me to the handicap shower . . . I have an amputated foot. I don't want to hurt myself entering or exiting the non-handicap shower." Id. ¶ 34. Kennedy...