Opinion
Civil Action 21-1094
06-24-2022
CARL S. JONES, JR. ANTHONY LEE, COURDE DAYE, DAELON HILL-JOHNSON, DANIEL MILES, DEVIN HALE, GERON ANDERSON, JAQUE DAVID, JERMAINE DEHONNEY, JUAN HAYDEN, MARIO WALL, MARTELL SMITH, ROMAN JONES, STEPHEN DAY, and WILLIAM FIELDER Plaintiffs, v. COUNTY OF ALLEGHENY, and WARDEN ORLANDO HARPER Defendants.
Hardy District Judge
REPORT AND RECOMMENDATION
ECF No. 75
Lisa Pupo Lenihan United States Magistrate Judge
I. RECOMMENDATION
It is respectfully recommended that the Motion to Dismiss the Complaint filed by Defendants County of Allegheny and Warden Orlando Harper (ECF No. 75) be granted as to all remaining Plaintiffs.
Although only Plaintiff Jones responded to Defendants' Motion to Dismiss, the Court's below analysis is equally applicable to all remaining Plaintiffs who failed to respond.
II. REPORT
A. Facts
Plaintiffs are pretrial detainees and convicted inmates in the Allegheny County Jail (“ACJ”). Complaint, ECF No. 6 at 4. On February 8, 2021, inmates who showed signs of Covid-19 symptoms were transferred from their usual unit, 8D, into quarantine unit 7D. ECF No. 6 at 26, ¶ 1. On February 11, 2021, all inmates were tested for Covid-19. ECF No. 6 at 27, ¶ 4. Over the next few days, more inmates were transferred into quarantine due to contracting Covid-19. ECF No. 6 at 27, ¶ ¶ 5-8.
On February 19, 2021, all inmates who contracted Covid-19 were in quarantine, all inmates on 8D who tested negative received an extra hour of recreation time. ECF No. 6 at 28, ¶ 11. Two days after the completed isolation of the 24 inmates who suffered from Covid-19, on February 21, 2021, at least 20 of the 24 patients were transferred out of quarantine and back to unit 8D, although most of them had not been retested. ECF No. 6 at 28, ¶ 12.
On February 24, 2021, some of the inmates who initially tested negative on February 11, 2021, were coerced to submit to retesting because otherwise they would face consequences like losing the privilege of obtaining a single cell, returning to their former assigned unit or they would be transferred into quarantine for two weeks. ECF No. 6 at 29, ¶ 14. Most inmates complied and submitted to retesting on February 24, 2021. ECF No. 6 at 30, ¶ 15. The staff performing the Covid-19 tests did not change their latex gloves in between testing different inmates. ECF No. 6 at 30, ¶ 16. The inmates that submitted to retesting were then put in lockdown in their cells the same day, while inmates who formerly tested positive were allowed their recreation time. ECF No. 6 at 30, ¶ 17.
The next day, on February 25, 2021, four inmates who refused to retest were transferred to unit 7E into quarantine. ECF No. 6 at 31, ¶ 18. On February 26, 2021, Carl Jones and four other inmates were told they contracted Covid-19 and were asked to pack their belongings and were transferred into quarantine in unit 7E. ECF No. 6 at 31, ¶ ¶ 19-20. Plaintiff Jones avers that he was only informed by fellow inmates that he tested positive for Covid-19. He never received any diagnoses from qualified medical staff or further information regarding his condition or the symptoms he might develop. ECF No. 6 at 31, ¶ 21. In total, at least 36 inmates contracted Covid-19 while lodged on unit 8D within the month of February 2021. ECF No. 6 at 32, ¶ 23 and ECF No. 6-1. While in quarantine, Plaintiff Jones suffered mental and emotional distress due to contracting Covid-19 in the ACJ and was consequently diagnosed with a depression and anxiety disorder and received a prescription of 30 mg Mirtazapine on March 4, 2021. ECF No. 6 at 33, ¶ ¶ 24-25. On March 7, 2021, Plaintiff Jones and other inmates were transferred out of quarantine unit 7E back to unit 8D without prior retesting. ECF No. 6 at 33, ¶ 26.
Plaintiff Jones received information that Covid-19 was first contracted by the inmates on unit 8D by a corrections officer sometime between January 21st and 28th, 2021, and that this corrections officer was thereafter sent home due to allegedly contracting and/or being exposed to Covid-19. ECF No. 6 at 34, ¶ 27. The inmates who tested negative on February 11, 2021, were not offered to be transferred to a safer environment to avoid being exposed to Covid-19. ECF No. 6 at 34, ¶ 28. The disease was spread within unit 8D by inmates who had contracted Covid-19 and who were responsible for distributing victuals or delivering commissary orders directly to inmates' cells. ECF No. 6 at 34,35, ¶ ¶ 29-31.
Plaintiff avers that the living conditions were unsanitary because the face masks were “left out in the open on the C.O.'s desk, making them available to all inmates and C.O.'s, which creates a liability for the said masks to be contaminated . . . []” and because the entire population of unit 8D was unable to wash their clothes during the month of February 2021. ECF No. 6 at 36, ¶ ¶ 32-33. Additionally, most of the cells in 8D have holes in the walls through which inmates can communicate or pass small objects, leaving a possibility for Covid-19 to spread throughout the unit. ECF No. 6 at 36, ¶ 34.
On May 26, 2021, Plaintiff Jones and six other inmates were transferred from unit 8D to 6E, since 8D became a unit for vaccinated inmates only. ECF No. 6 at 37, ¶ 35. However, there were still many unvaccinated inmates on Unit 8D. ECF No. 6 at 37, ¶ 35. Plaintiff Jones believes that the transfer took place in retaliation for collecting signatures for a “Coronavirus Declaration” (Exhibit 6-1) from other inmates on May 21, 2021. ECF No. 6 at 37, ¶ 37. Plaintiff Jones alleges that the transfer was intended to be a punishment since he was assigned a double bunked cell instead of his usual single cell, and the schedule of unit 6E was changed in a way that the normal recreational time of two hours, as permitted on 8D, was shortened to 90 minutes. ECF No. 6 at 37, ¶ 36.
Plaintiffs allege that most if not all inmates who contracted Covid-19 in the ACJ suffered various symptoms including loss of taste and smell, problems breathing, chest pain, coughing and chills. ECF No. 6 at 40-44, ¶ ¶ 1-12.
Plaintiff Jones requests specific performance consisting of being permanently placed on single cell status. ECF No. 6 at 46, ¶ 2. Additionally, all Plaintiffs request compensatory and punitive damages. ECF No. 6 at 46, ¶ ¶ 3-4.
The Plaintiffs assert an Eighth and Fourteenth Amendment conditions of confinement claim against Warden Harper and the County of Allegheny, and a Fourteenth Amendment equal protection claim against Warden Harper. Liberally construing the Complaint, Plaintiff Jones also appears to be alleging a First Amendment Retaliation claim.
B. Legal Standard
The United States Court of Appeals for the Third Circuit summarized the standard to be applied in deciding motions to dismiss filed pursuant to Rule 12(b)(6):
Under the “notice pleading” standard embodied in Rule 8 of the Federal Rules of Civil Procedure, a plaintiff must come forward with “a short and plain statement of the claim showing that the pleader is entitled to relief.” As explicated in Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), a claimant must state a “plausible” claim for relief, and “[a] claim has facial plausibility when the pleaded factual
content allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Although “[f]actual allegations must be enough to raise a right to relief above the speculative level,” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007), a plaintiff “need only put forth allegations that raise a reasonable expectation that discovery will reveal evidence of the necessary element.” Fowler, 578 F.3d at 213 (quotation marks and citations omitted); see also Covington v. Int'l Ass'n of Approved Basketball Officials, 710 F.3d 114, 117-18 (3d Cir. 2013).Thompson v. Real Estate Mortg. Network, 748 F.3d 142, 147 (3d Cir. 2014).
In addition to the complaint, courts may consider matters of public record and other matters of which a court may take judicial notice, court orders, and exhibits attached to the complaint when adjudicating a motion to dismiss under Rule 12(b)(6). Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1384 n.2 (3d Cir. 1994) (citing 5A Wright and Miller, Federal Practice and Procedure: Civil 2d, § 1357; Chester County Intermediate Unit v. Pennsylvania Blue Shield, 896 F.2d 808, 812 (3d Cir. 1990)). A court may also consider indisputably authentic documents. Spruill v. Gillis, 372 F.3d 218, 223 (3d Cir. 2004); Pension Ben. Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993); Golden v. Cook, 293 F.Supp.2d 546, 551 (W.D. Pa. 2003) (“[C]ourts are permitted to consider matters of which they may take judicial notice, including records and reports of administrative bodies, and publicly available records and transcripts from judicial proceedings ‘in related or underlying cases which have a direct relation to the matters at issue.'”) (citations omitted).
When considering pro se pleadings, a court must employ less stringent standards than when judging the work product of an attorney. Haines v. Kerner, 404 U.S. 519, 520 (1972). When presented with a pro se complaint, the court should construe the complaint liberally and draw fair inferences from what is not alleged as well as from what is alleged. Dluhos v. Strasberg, 321 F.3d 365, 369 (3d Cir. 2003). In a § 1983 action, the court must “apply the applicable law, irrespective of whether the 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.”). 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); Riddle v. Mondragon, 83 F.3d 1197, 1202 (10th Cir. 1996).
C. Analysis
Section 1983 of the Civil Rights Act provides as follows:
Every person who, under color of any statute, ordinance, regulation, custom, or usage of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or any other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress .42 U.S.C. § 1983. To state a claim for relief under this provision, the Plaintiff must demonstrate that the conduct in the complaint was committed by a person or entity acting under color of state law, and that such conduct deprived the Plaintiff of rights, privileges or immunities secured by the Constitution or the laws of the United States. Piecknick v. Commonwealth of Pennsylvania, 6 F.3d 1250, 1255-56 (3d Cir. 1994). Section 1983 does not create rights; it simply provides a remedy for violations of those rights created by the United States Constitution or federal law. Kneipp v. Tedder, 95 F.3d 1199, 1204 (3d Cir. 1996).
Eighth and Fourteenth Amendment Conditions of Confinement Against Warden Harper in his Individual Capacity
In support of their Motion to Dismiss, Defendants argue that Plaintiffs' Conditions of Confinement claim does not amount to punishment under the Fourteenth Amendment, nor have they alleged facts to state a plausible claim for cruel and unusual punishment pursuant to the Eighth Amendment.
In response, Plaintiff Jones directs the Court to the following seven (7) alleged events/circumstances that violate Plaintiffs' Eighth and Fourteenth Amendment rights as to Defendant Harper and Allegheny County:
1). Of the 24 inmates who contracted Covid-19 between the dates of February 8, 2021, and February 19, 2021, 20 inmates were only held in quarantine on Pod 7D for two (2) to four (4) days; 2). Between the dates of February 22, 2021, to February 24, 2021, “inmates who had recently contracted Covid-19, were reintegrated with the inmates” who didn't contract it and allowed to attend recreation together in groups of 10; 3). The medical official who performed Covid -19 swab testing on February 24, 2021; did not change her latex gloves between testing each inmate; 4). Six (6) tier workers responsible for distribution of commissary, daily meals, and sanitation on Pod 8D were all diagnosed with Covid-19 when they were performing these duties; 5). Face masks were left out on the corrections officer's desk, unsealed and unpackaged and made available to any inmate and corrections officers; 6). Inmates on Pod 8D were not permitted laundry services for the month of February 2021; 7). All lockdowns and quarantines were ineffective because “Pod 8D (7D, 7E, and 8E) has a ‘hole' in the wall ....” Inmates use these holes to communicate and to pass small objects. These small holes “more than likely enabled” the spread of Covid-19. ECF No. 91 at 3.
The Eighth Amendment “was designed to protect those convicted of crimes and consequently the [Cruel and Unusual Punishment] Clause applies only after the State has complied with constitutional guarantees traditionally associated with criminal prosecutions.” Whitley v. Albers, 475 U.S. 312, 318 (1986) (citation and internal quotations omitted). It 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. 825, 832 (1994). In Wilson v. Seiter, 501 U.S. 294 (1991), the United States Supreme Court set forth the standard for alleged violations of the Eighth Amendment while addressing non-medical conditions of confinement. The Court held that the prisoner must prove that prison officials acted with deliberate indifference that deprived him of “‘the minimal civilized measure of life's necessities.'” Id. (quoting Rhodes v. Chapman, 452 U.S. 337, 347 (1981)).
Pretrial detainees, however, are protected from “punishment” by the Due Process Clause of the Fourteenth Amendment. Bell v. Wolfish, 441 U.S. 520, 535 (1979). Whether a deprivation constitutes unconstitutional punishment requires an objective and subjective analysis. The objective analysis requires an inquiry into whether “the deprivation [was] sufficiently serious” and the subjective analysis concerns whether “the officials act[ed] with a sufficiently culpable state of mind[.]” Stevenson v. Carroll, 495 F.3d 62, 68 (3d Cir. 2007) (quoting Wilson, 501 U.S. at 298. A prison condition “‘amounts to punishment when there is a showing of express intent to punish on the part of detention facility officials, when the restriction or condition is not rationally related to a legitimate non-punitive government purpose, or when the restriction is excessive in light of that purpose.'” Id. “In evaluating a pretrial detainee's claim of unconstitutional punishment, courts must examine the totality of the circumstances within the institution.” Id.; see also Hubbard v. Taylor, 538 F.3d 229, 233 (3d Cir. 2008). The United States Supreme Court and the Court of Appeals for the Third Circuit have made clear, however, that the Fourteenth Amendment due process standard is at least as protective as the Eighth Amendment cruel and unusual punishment standard when analyzing conditions of confinement. See Bell, 441 U.S. at 545; Stevenson, 495 F.3d at 70.
Here, Plaintiffs complain of conditions at the ACJ from February 8, 2021, to February 28, 2021. At this time, a Consent Order issued in the civil case of Graham v. Allegheny County, Civil Action No. 2:20-496, 2020 WL 27772398 (W.D. Pa. May 27, 2020), governed the ACJ's practices and procedures for handling the spread of Covid-19. See ECF No. 76-1. Pursuant to the terms of the Consent Order, the ACJ “shall continue to . . . implement the ACJ Policy” adopted on March 9, 2020, as revised. The ACJ policy was incorporated into the Court's Order.As noted by Defendants, the Policy in place at the time of Plaintiffs' alleged violations provided for the following: 1) the screening of new inmates to protect the ACJ's existing inmate population; 2) new inmate admissions were to be assessed by a medical professional prior to being transferred from the intake housing unit to a new pod; 3) implementation of treatment and isolation protocols for inmates who were diagnosed with Covid-19, or suspected to have Covid-19; 4) transfer of inmates for isolation, quarantining, mask dissemination, and the use of disinfecting agents; and 5) inmates who were exposed to Covid-19 but tested negative would be quarantined for observation. See ECF No. 76-3 at 7-12.
As more information became available regarding Covid-19, the policy incorporated into the consent decree was revised to reflect current CDC standards. In their response, Defendants attach the April 16, 2020, revisions to the Policy (ECF No. 76-2) and the April 21, 2020, revisions (ECF No. 76-3). These various versions are substantially the same.
Although certain deviations from procedures allegedly occurred here, there are no averments suggesting that Defendant Harper personally participated in, directed others, or acquiesced in the deviations of which Plaintiffs complain. See Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988) (citing Parratt v. Taylor, 451 U.S. 527, 537 n.3 (1981) (other citation omitted)), see also C.N. Ridgewood v. Bd. of Educ., 430 F.3d 159, 173 (3d Cir. 2005) (“To impose liability on the individual defendants, Plaintiffs must show that each one individually participated in the alleged constitutional violation or approved of it.”) (citing C.H. v. Oliva, 226 F.3d 198, 201-02 (3d Cir. 2000) (en banc)). Moreover, the law is clear that there is no place for vicarious liability in § 1983 jurisprudence. See Rode, 845 F.2d at 1207. Consequently, Plaintiffs have pled no facts to establish a plausible Fourteenth/Eighth Amendment claim against Defendant Harper.
Likewise, Plaintiffs have pled no facts to support a plausible claim against Defendant Harper for supervisory liability. The Third Circuit Court of Appeals has identified two general ways in which a supervisor-defendant may be liable for unconstitutional acts undertaken by subordinates. First, liability may attach if they, “with deliberate indifference to the consequences, established and maintained a policy, practice or custom which directly caused [the] constitutional harm.” A.M. ex rel. J.M.K. v. Luzerne Cnty. Juvenile Det. Ctr., 372 F.3d 572, 586 (3d Cir. 2004) (alteration in original) (quoting Stoneking v. Bradford Area Sch. Dist., 882 F.2d 720, 725 (3d Cir. 1989)). Second, “a supervisor may be personally liable under § 1983 if he or she participated in violating the plaintiff's rights, directed others to violate them, or, as the person in charge, had knowledge of and acquiesced” in the subordinate's unconstitutional conduct. Id. (citing Baker v. Monroe Twp., 50 F.3d 1186, 1190-91 (3d Cir. 1995)).
As to the second test, the above analysis demonstrates that Plaintiffs cannot make out a plausible claim under this theory.
As related to the first test, in Sample v. Diecks, the Third Circuit recognized that “‘supervision' entails, among other things, training, defining expected performance by promulgating rules or otherwise, monitoring adherence to performance standards, and responding to unacceptable performance whether through individualized discipline or further rulemaking.” 885 F.2d at 1116. Sample involved an Eighth Amendment claim against a supervisor for implementing deficient policies and being deliberately indifferent to the risk that the policies would result in the deprivation of a constitutional right. Id.; see also Beers-Capitol v. Whetzel, 256 F.3d 120, 133-34 (3d Cir. 2001) (discussing Sample). The Court developed a four-part test for determining whether an official may be held liable on a claim for failure to supervise. The plaintiff must identify a supervisory policy or practice that the supervisor failed to employ, and then prove that: (1) the policy or procedures in effect at the time of the alleged injury created an unreasonable risk of a constitutional violation; (2) the defendant-official was aware that the policy or practice created an unreasonable risk; (3) the defendant was indifferent to that risk; and (4) the constitutional injury was caused by the failure to implement the supervisory practice or procedure. Sample, 885 F.2d at 1118; Brown v. Muhlenberg Twp., 269 F.3d 205 (3d Cir. 2001). In this Circuit, when a plaintiff seeks to hold a defendant liable under the Eighth Amendment in his or her role as a supervisor, “Sample's four-part test provides the analytical structure ...., it being simply the deliberate indifference test applied to the specific situation of a policymaker.” Beers-Capitol, 256 F.3d at 135.
Plaintiffs here cannot meet the second and third elements for establishing supervisory liability under this theory. Plaintiffs allege no facts to suggest that Defendant Harper was aware of the deviations from established policy by those corrections officials involved with those deviations. And in the absence of his knowledge of these practices during the month of February 2021, Defendant Harper cannot be said to be deliberately indifferent to the risk.
Most importantly, the Court will not inject itself into the day-to-day management of prisons, as the “operation of a correctional institution is at best an extraordinarily difficult undertaking.” Wolff v. McDonnell, 418 U.S. 539, 566 (1974). Doing so during a national pandemic would only magnify the difficulties. As noted by Defendants, the Complaint establishes that inmates were being tested regularly and that those inmates who tested positive were moved into quarantine pods. Face masks were made available and Plaintiffs' concerns about contamination of those masks and the transmission of the virus through small holes in the walls is pure speculation. During the relevant time, February 2021, Covid-19 vaccines were widely available to inmates as suggested by the Complaint. See generally Garrett v. Murphy, 17 F.4th 419, 433 (3d Cir. 2021) (Third Circuit considering wide availability of Covid-19 vaccine in denying application for in forma pauperis status where pretrial detainee, alleging prison system's failure to follow proper guidelines, could not show an imminent risk of death or serious physical injury.). Simply because the execution of Covid-19 protocols may have been nonoptimal at times, the alleged deficiencies fall well short of evidencing deliberate indifference by the named Defendants. See Easley v. Wetzel, Case No. 1:21-cv-00063, 2021 WL 1200214, at *6 (W.D. Pa. Feb. 26, 2021) (citing Wilson v. Williams, 961 F.3d 829, 841 (6th Cir. 2020) (Even though the harm imposed by Covid-19 is not totally averted, the institution has responded reasonably to the risk and therefore has not been deliberately indifferent to the inmates' Eighth Amendment rights.). The conditions described in Plaintiffs' Complaint do not amount to punishment or cruel or unusual conditions of confinement pursuant to the Fourteenth and Eighth Amendments.
Therefore, it is recommended that the remaining Plaintiffs' Fourteenth and Eighth Amendment claims for unconstitutional conditions of confinement should be dismissed.
Fourteenth Amendment Equal Protection Claim Against Warden Harper in his Individual Capacity
Plaintiffs contend that Defendants discriminated against those Plaintiffs who refused to be tested for Covid -19 by threatening to move them to other pods or to assign them a cellmate. Defendants argue that even if the ACJ imposed a sanction of less desirable housing to those inmates who refused to be tested, any such action by the ACJ would not constitute an equal protection violation because it was taken for legitimate government and penological purposes. ECF No. 76 at 16-17. In response, Plaintiff Jones clarifies his claim, indicating that he and other inmates refused the Covid-19 vaccine, and as a result, were moved to less desirable housing on Pod 6E, where he lost his single cell and 30 minutes of recreation time. Plaintiff Jones argues that this action evidences a discriminatory purpose because it would make more sense to keep unvaccinated inmates on Pod 8D where there are more single cells. In addition, Pod 6E is known to be a “nuisance pod” which is commonly subjected to lockdowns and strip searches. ECF No. 92 at 17-18.
Here, Plaintiffs appear to be invoking a “class of one” equal protection theory. In order to make out such a claim, a plaintiff must aver facts to plausibly suggest that “(1) the defendant treated him differently from others similarly situated, (2) the defendant did so intentionally, and (3) there was no rational basis for the difference in treatment.” Overly v. Garmon, 599 Fed.Appx. 42, 43 (3d Cir. 2015) (quoting Hill v. Borough of Kutztown, 455 F.3d 225, 239 (3d Cir.2006)).
Again, the Court must defer to the broad discretion of prison authorities in their attempt to control the spread of Covid-19 within their facility. That is, even “when a prison regulation impinges on inmates' constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests.” Turner v. Safely, 482 U.S. 78, 89 (1987). Because it is difficult to social distance in a correctional setting, the Court cannot second guess where authorities move those who test positive, those who refuse to be vaccinated, those who are more vulnerable to serious complications should they contract Covid-19, and those who recover from Covid-19. That is, the list of relevant considerations for authorities is long and the Court will not disturb that administrative decision-making.
Therefore, it is respectfully recommended that Plaintiffs' equal protection claim be dismissed.
First Amendment Retaliation Claim Against Warden Harper in his Individual Capacity
In an abundance of caution, although not argued by Plaintiff, the Court liberally construes Plaintiff Jones' allegations to include a claim for First Amendment retaliation. Plaintiff alleges that on May 26, 2021, Plaintiff Jones and six other inmates were transferred from unit 8D to 6E, and that the transfer took place in retaliation for collecting signatures for a “Coronavirus Declaration” (Exhibit 6-1) from other inmates on May 21, 2021. ECF No. 6 at 37, ¶ 37. As a result of the transfer, Plaintiff was removed from a single cell to a less desirable double-bunked cell, and he received 30 less minutes of recreational time per day.
In order to state a claim for First Amendment retaliation in the prison context, a plaintiff must prove that he engaged in a constitutionally protected activity. Rauser v. Horn, 241 F.3d 330, 333 (3d Cir. 2001). Second, a plaintiff must demonstrate that he “suffered some ‘adverse action' at the hands of prison officials.” Id. (quoting Allah v. Seiverling, 229 F.3d 220, 225 (3d Cir. 2000)). A prisoner satisfies this element by showing adverse action “sufficient ‘to deter a person of ordinary firmness' from exercising his First Amendment rights.” Id. Third, a prisonerplaintiff must prove that his constitutionally protected conduct was a substantial motivating factor in the defendants' conduct. Rauser, 241 F.3d at 333-34 (adopting Mount Healthy Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977)). The crucial third element of causation requires a plaintiff to prove either an unusually suggestive temporal proximity between the protected activity and the allegedly retaliatory action, or a pattern of antagonism coupled with timing to establish a causal link. See Lauren W. ex rel. Jean W. v. DeFlaminis, 480 F.3d 259, 267 (3d Cir. 2007).
Once a plaintiff has made out a prima facie case, the burden shifts to the defendants to prove by a preponderance of the evidence that they “would have made the same decision absent the protected conduct for reasons reasonably related to penological interest.” Carter v. McGrady, 292 F.3d 152, 158 (3d Cir. 2002) (internal quotation and citation omitted).
As noted above, the conduct of prison officials as to where and why they moved unvaccinated inmates who were more vulnerable to serious complications from Covid-19 must be left to the broad discretion of those decision-makers. Defendants' moving and reply briefs are replete with details concerning the protocols/procedures in place to protect the inmates at the ACJ. That is, the penological interests at stake with the onset of the Covid-19 pandemic as it relates to prison populations are so serious that the Court must defer to the broad discretion of prison administrators. Clearly, Defendants have demonstrated that they would have made the same decision absent Plaintiffs' “Coronavirus Declaration” for reasons related to a serious penological interest: containing the spread of Covid-19 within the ACJ.
Therefore, it is respectfully recommended that any First Amendment retaliation claim be dismissed.
Municipal Liability claim against Defendant Allegheny County and Defendant Harper in his Official Capacity
Plaintiffs also attempt to make out a claim for municipal liability. Because Plaintiffs are unable to make out an underlying constitutional claim, their municipal liability claim must fail as a matter of law. See Brown v. Dep't of Health Emergency Med. Servs. Training Inst., 318 F.3d 473, 482 (3d Cir. 2003) (citing Collins v. City of Harker Heights, 503 U.S. 115, 122 (1992) (emphasizing “the separate character of the inquiry into the question of municipal responsibility and the question whether a constitutional violation occurred.”)).
Futility of Amendment
The Court is cognizant of the rule in this circuit that if a district court is dismissing a complaint pursuant to Federal Rule of Civil Procedure 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.” Phillips v. Cnty. of Allegheny, 515 F.3d 224, 245 (3d Cir. 2008). Here, any attempt to amend by the Plaintiffs would be futile as a matter of law.
III. CONCLUSION
For the reasons discussed above, it is respectfully recommended that the Motion to Dismiss the Complaint filed by Defendants County of Allegheny and Warden Orlando Harper (ECF No. 75) be granted as to all remaining Plaintiffs. It is further recommended that the Clerk mark the case closed.