Opinion
Civil Action 4:22-CV-01890
05-09-2023
ALEXIS MALDANADO, Plaintiff, v. KEVIN KAUFFMAN, et al., Defendants.
BRANN, J.
REPORT AND RECOMMENDATION
KAROLINE MEHALCHICK, Chief United States Magistrate Judge
On December 30, 2022, pro se prisoner-Plaintiff Alexis Maldanado (“Maldanado”) filed the fourth amended complaint against Defendants G. Ralston, Unit Manager of certain housing units (B and C Blocks) at SCI-Huntingdon, and John Rivello, Superintendent at SCI-Huntingdon (collectively, “Defendants”). (Doc. 224). Before the Court is a motion to dismiss filed by Defendants. (Doc. 228). For the reasons stated herein, it is recommended that Defendants' motion to dismiss be GRANTED. (Doc. 228).
I. Background and Procedural History
On January 8, 2021, pro se-prisoner Plaintiffs Vann L. Bailey, Jason Cisne,Angel Irizarry, Alexis Maldanado, and Miguel Molina, representative members of a proposed class of inmates incarcerated at the State Correctional Institution at Huntingdon (“SCI-Huntingdon”), initiated a pro se civil rights action pursuant to 42 U.S.C. § 1983 against Defendants for constitutional violations caused by the deterioration of the SCI-Huntingdon facility and by employee misconduct. Molina, et al. v. Kauffman, 4:21-CV-00038 (M.D. Pa. Jan. 8, 2021), ECF No. 1. On July 25, 2022, the undersigned issued a report and recommendation, which the Court adopted on August 30, 2022, granting Defendants' motion to dismiss. Molina, et al. v. Kauffman, 4:21-CV-00038 (M.D. Pa. July 25, 2022), ECF No. 202; Molina, et al. v. Kauffman, 4:21-CV-00038 (M.D. Pa. Aug. 30, 2022), ECF No. 213. Specifically, the negligence claims against Defendants Wetzel and Kauffman in their official capacities were dismissed with prejudice, the remaining claims were dismissed without prejudice, each Plaintiff was permitted to file a fourth amended complaint, and the Clerk of Court was directed to open new civil actions for each of the remaining Plaintiffs. Molina, et al. v. Kauffman, 4:21-CV-00038 (M.D. Pa. Aug. 30, 2022), ECF No. 213; Molina, et al. v. Kauffman, 4:21-CV-00038 (M.D. Pa. Dec. 1, 2022), ECF No. 223.
Cisne was voluntarily dismissed with prejudice from this action by stipulation. Molina, et al. v. Kauffman, 4:21-CV-00038 (M.D. Pa. Feb. 24, 2022), ECF No. Doc. 177.
On December 30, 2022, Maldanado filed a fourth amended complaint. (Doc. 224). Maldanado alleges claims against Defendants regarding his transfer to SCI-Mahanoy, his removal from his inmate employment, and being labeled a “rat” in front of other inmates. (Doc. 224, ¶¶ 20-44). Maldanado asserts that, on January 10, 2022, he approached Defendant Rivello regarding issues in his cell and was told by Rivello that he was tired of Maldanado's complaints and would transfer him “far away” if he continued to complaint. (Doc. 224, ¶¶ 68). Subsequently, on January 18, 2022, Maldanado submitted a DC-135A inmate request slip to both Defendants complaining about SCI-Huntingdon's COVID-19 protocols. (Doc. 224, ¶ 9). On January 25, 2022, Maldanado claims he overheard Defendant Ralston discussing Maldanado's inmate request slip as well as his pending civil action against Ralston and other SCI-Huntingdon staff in Molina v. Kauffman, No. 4:21-CV-0038. (Doc. 224, ¶¶ 10-11). Maldanado avers that he approached Defendant Ralston regarding this conversation and was told by Ralston that he would be removed from his prison employment if he continued to file grievances. (Doc. 224, ¶ 12). Maldanado filed two separate grievances against each Defendant regarding “retaliatory tactics” on January 27, 2022, and February 8, 2022, respectively. (Doc. 224, ¶¶ 13-14). On March 23, 2022, Maldanado was informed by a corrections officer that he was being transferred and needed to pack his personal property. (Doc. 224, ¶ 15). Maldanado alleges that, while packing his property and placing it into a cart, Defendant Ralston was yelling loudly in front of other inmates “Molina's rat is gone . . .” (Doc. 224, ¶ 16). Further, Maldanado claims that immediately after Defendant Ralston's alleged comments, he was attacked by inmates in the shower. (Doc. 224, ¶ 40).
In the fourth amended complaint, Maldanado sets forth the following causes of action: First Amendment retaliation claim against Rivello (Count I); First Amendment retaliation claim against Ralston (Count II); and Eighth Amendment failure to protect claim against Ralston (Count III). (Doc. 224, ¶¶ 20-44). As relief, Maldanado seeks declaratory judgment that his constitutional rights were violated, as well as monetary compensation. (Doc. 224, ¶ 45).
On January 10, 2023, Defendants filed the motion to dismiss, as well as a brief in support. (Doc. 228; Doc. 229). On March 7, 2023, Maldanado filed a brief in opposition. (Doc. 232). The motion to dismiss has been fully briefed and is now ripe for disposition. (Doc. 228; Doc. 229; Doc. 232).
II. Standard of Review
Rule 12(b)(6) of the Federal Rules of Civil Procedure authorizes a defendant to move to dismiss for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). To assess the sufficiency of a complaint on a Rule 12(b)(6) motion, a court must first take note of the elements a plaintiff must plead to state a claim, then identify mere conclusions which are not entitled to the assumption of truth, and finally determine whether the complaint's factual allegations, taken as true, could plausibly satisfy the elements of the legal claim. Burtch v. Milberg Factors, Inc., 662 F.3d 212, 221 (3d Cir. 2011). In deciding a Rule 12(b)(6) motion, the court may consider the facts alleged on the face of the complaint, as well as “documents incorporated into the complaint by reference, and matters of which a court may take judicial notice.” Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007).
After recognizing the required elements which make up the legal claim, a court should “begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). The plaintiff must provide some factual ground for relief, which “requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” BellAtlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). “[T]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678. Thus, courts “need not credit a complaint's ‘bald assertions' or ‘legal conclusions' ....” Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997) (quoting In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1429-30 (3d Cir. 1997)). Nor need a court assume that a plaintiff can prove facts that the plaintiff has not alleged. Associated Gen. Contractors of Cal. v. Cal. State Council of Carpenters, 459 U.S. 519, 526 (1983).
A court must then determine whether the well-pleaded factual allegations give rise to a plausible claim for relief. “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Palakovic v. Wetzel, 854 F.3d 209, 219-20 (3d Cir. 2017) (quoting Iqbal, 556 U.S. at 678) (internal quotation marks omitted); see also Sheridan v. NGK Metals Corp., 609 F.3d 239, 262 n.27 (3d Cir. 2010). The court must accept as true all allegations in the complaint, and any reasonable inferences that can be drawn therefrom are to be construed in the light most favorable to the plaintiff. Jordan v. Fox, Rothschild, O'Brien & Frankel, 20 F.3d 1250, 1261 (3d Cir. 1994). This “presumption of truth attaches only to those allegations for which there is sufficient factual matter to render them plausible on their face.” Schuchardt v. President of the U.S., 839 F.3d 336, 347 (3d Cir. 2016) (internal quotation and citation omitted). The plausibility determination is context-specific and does not impose a heightened pleading requirement. Schuchardt, 839 F.3d at 347.
Additionally, Federal Rule of Civil Procedure 8(a)(2) requires “a short and plain statement of the claim showing that the pleader is entitled to relief.” Thus, a well-pleaded complaint must recite factual allegations that are sufficient to raise the plaintiff's claimed right to relief beyond the level of mere speculation, set forth in a “short and plain” statement of a cause of action. There is no requirement that the pleading be specific or probable. Schuchardt, 839 F.3d at 347 (citing Phillips v. Cty. of Allegheny, 515 F.3d 224, at 233-234 (3d Cir. 2008). Rule 8(a) requires a “showing that ‘the pleader is entitled to relief, in order to give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.'” Ericksonv. Pardus, 551 U.S. 89, 93-94 (2007) (quoting Fed.R.Civ.P. 8(a)(2)); see also Phillips, 515 F.3d at 233 (citing Twombly, 550 U.S. at 545).
With the aforementioned standards in mind, a document filed pro se is “to be liberally construed.” Estelle v. Gamble, 429 U.S. 97, 106 (1976). A pro se complaint, “however inartfully pleaded,” must be held to “less stringent standards than formal pleadings drafted by lawyers” and can only be dismissed for failure to state a claim if it appears beyond a doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Haines v. Kerner, 404 U.S. 519, 520-21 (1972). Further, the Third Circuit has instructed that if a complaint is vulnerable to dismissal for failure to state a claim, the district court must permit a curative amendment, unless an amendment would be inequitable or futile. Graysonv. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002).
III. Discussion
Defendants move to dismiss the fourth amended complaint for three reasons. First, Defendants argue the complaint should be dismissed as prejudicial because it does not arise out of the same incident as both the original and amended complaints, as the fourth amended complaint seeks to add Rivello as a Defendant and assert new claims of retaliation and failure to protect. (Doc. 229, at 6-9). Second, Defendants move to dismiss Counts I and II with respect to both Defendants, for failure to state a claim of retaliation upon which relief may be granted. (Doc. 229, at 9-13). Third, Defendants move to dismiss Count III with respect to Ralston, for failure to state a claim of failure to protect upon which relief may be granted. (Doc. 229, at 13-15).
In opposition, Maldanado argues that the fourth amended complaint should not be dismissed because he has demonstrated that Defendants took adverse actions against Maldanado due to his previous civil action. (Doc. 232, at 5-6); see Molina v. Kauffman, No. 4:21-CV-00038. Maldanado concedes that while Rivello was not an original Defendant in the previous action, “Rivello was well aware of that civil action[ ] as the action dealt with ‘the conditions of confinement' which he as a new Superintendent, is responsible for.” (Doc. 232, at 7).
A. Addition of New Claims and Defendant
Defendants move to dismiss the complaint on the grounds that the fourth amended complaint claims do not relate back to the claims in the original complaint pursuant to Rule 15(c) of the Federal Rules of Civil Procedure. (Doc. 229, at 8-9). Defendants submit that Maldanado should be directed to initiate a separate cause of action for the claims set forth in the fourth amended complaint. (Doc. 229, at 9). in response, Maldanado asserts that the operative complaint satisfies the requirements of the relation back doctrine. (Doc. 232, at 5).
Fed. R. Civ. P. 15(c) provides:
(c) Relation Back of Amendments. An amendment of a pleading relates back to the date of the original pleading when:
(1) relation back is permitted by the law that provides the statute of limitations applicable to the action, or
(2) the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, or
(3) the amendment changes the party or the naming of the party against whom a claim is asserted if the foregoing provision (2) is satisfied and, within the period provided by Rule 4(m) for service of the summons and complaint, the party to be brought in by amendment (A) has received such notice of the institution of the action that the party will not be prejudiced in maintaining a defense on the merits, and (B) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against the party.
“The Rule is written in the conjunctive, and courts interpret 15(c)(3) as imposing three conditions, all of which must be met for an amended complaint that seeks to substitute newly named defendants.” Singletary v. Pa. Dep't of Corr., 266 F.3d 186, 194 (3d Cir. 2001) (citing Urrutia v. Harrisburg Cty. Police Dep't, 91 F.3d 451, 457 (3d Cir. 1996)). The first condition is that the claim in the amended pleading arose out of a “common core of operative facts” as set forth in the original pleading. Fed.R.Civ.P. 15(c)(2); Bensel v. Allied Pilots Ass'n, 387 F.3d 298, 310 (3d Cir. 2004) (internal citation omitted). The second condition is that the newly named party must have “received such notice of the institution of the action within the 120 day period that the party will not be prejudiced in maintaining a defense on the merits.” Singletary, 266 F.3d at 194. The third condition is that the newly named party must have known, or should have known (again, within the 120 day period), that “but for a mistake” made by the plaintiff concerning the newly named party's identity, “the action would have been brought against” the newly named party in the first place. Singletary, 266 F.3d at 194 (quoting Fed.R.Civ.P. 15(c)(3)(B)). “Plaintiff has the burden of demonstrating each of the three [conditions].” Spiess v. Pocono Mountain Reg'l Police Dep't, No. 3:10-CV-287, 2012 WL 1965387, at *4 (M.D. Pa. May 31, 2012) (citing Garvin v. City of Phila., 354 F.3d 215, 222 (3d Cir. 2003)). Defendants argue that Maldanado's fourth amended complaint does not satisfy any of the above-mentioned conditions. (Doc. 229, at 8).
Regarding the first condition, the undersigned finds that it is not clear that the forth amended complaint arose out of the same conduct, transaction, or occurrence set forth in the original pleading. (Doc. 1; Doc. 104; Doc. 224); see Fed.R.Civ.P. 15(c). The Third Circuit has explained that “amendments that restate the original claim with greater particularity or amplify the factual circumstances surrounding the pertinent conduct, transaction or occurrence in the preceding pleading” will relate back because “application of Rule 15(c) involves a search for a common core of operative facts in the two pleadings.” Bensel, 387 F.3d at 310. However, an amendment “does not relate back . . . when it asserts a new ground for relief supported by facts that differ in both time and type from those the original pleading set forth.” Farrell v. Einemann, No. 04-CV-2088, 2006 WL 5164064, *1 (D.N.J. Aug. 28, 2006) (quoting Mayle v. Felix, 545 U.S. 644, 650 (2005)).
Here, the original pleading related to the danger posed by the deteriorating physical structure of SCI-Huntingdon and SCI-Huntingdon's response to the COVID-19 pandemic.(Doc. 1; Doc. 104). The fourth amended complaint relates to alleged acts of retaliation and failure to protect based on an administrative transfer to another prison, Ralston allegedly calling Maldanado a “rat” in front of other inmates, and firing him from his prison employment. (Doc. 224, ¶¶ 20-44). In his brief in opposition to the motion to dismiss, Maldanado argues that the allegations in the fourth amended complaint relate to the events from his previous complaints because “Rivello had personal knowledge of the previous lawsuit, and he decided to take the adverse actions against [Maldanado] due to his previous civil action against his employee Unit Manager Ralston as well as other staff. These adverse actions alleged took place after the time period complained of in the previous complaint.” (Doc. 232, at 5).
The undersigned notes that Maldanado previously sought leave of Court to file a supplemental complaint to join Rivello as a defendant and assert additional claims under the First and Eighth Amendments. (Doc. 190). The undersigned found that, liberally construed, the proposed supplemental complaint did not violate the relevant rules such as Rule 18 and Rule 20 as the pleading set forth claims that seemed to have a connection to Maldanado's existing claims against the then-named defendants. (Doc. 202, at 4 n.3). However, as the Court dismissed Maldanado's third amended complaint without prejudice to him filing a fourth amended complaint, the Court deemed Maldanado's motion for leave to file a supplemental complaint withdrawn. (Doc. 213).
Even painting these allegations with a broad brush, the undersigned is unable to read the fourth amended complaint to encompass the claims that appear in Maldanado's previous complaints. The undersigned finds that the only thing the fourth amended complaint has in common with previous complaints is Maldanado himself, and SCI-Huntingdon, where Defendants' alleged actions took place. Maldanado's prior complaints contain no retaliation or failure to protect claims. Indeed, the prior complaint solely alleged Eighth Amendment conditions of confinement and deliberate indifference violations. (Doc. 1; Doc. 104). Therefore, the claims in the fourth amended complaint do not “restate the original claim with greater particularity or amplify the factual circumstances” of the claims asserted in Maldanado's precious complaints. Bensel, 387 F.3d at 310. Indeed, the fourth amended complaint asserts new grounds for relief on a new set of facts, which differ in both time and type from the claims asserted in the prior pleadings. Accordingly, the undersigned finds that the fourth amended complaint does not relate back to Maldanado's previous complaints.
The undersigned finds that Maldanado's relation-back argument is meritless because the original and prior complaints are completely devoid of facts alleging Maldanado sustained injuries from retaliation and failure to protect. As Maldanado's fourth amended complaint fails to relate back to any conduct, transaction, or occurrence alleged in previous complaints, the undersigned will not evaluate Maldanado's substantive arguments on the alleged retaliation and failure to protect by Defendants.
As such, it is respectfully recommended that Defendants' motion to dismiss be granted and the fourth amended complaint be dismissed without prejudice to Maldanado initiating a new, separate action for these claims. In an abundance of caution, the undersigned will address Defendants' remaining arguments to dismiss the complaint.
B. Counts I and II
Defendants assert Maldanado's First Amendment claims at Counts I and II should be dismissed with respect to both Defendants, for failure to state a claim upon which relief may be granted. (Doc. 229, at 9). In opposition, Maldanado argues that Defendants' retaliatory actions “were a direct link to his litigation efforts against him in the lawsuit docketed at 4:21-CV-00038.” (Doc. 232, at 7).
It is well-settled that prison officials may not retaliate against an inmate because he exercises his right of access to the courts. Fantone v. Latini, 780 F.3d 184, 191 (3d Cir. 2015). A prisoner asserting a retaliation claim must allege the following elements: (1) he engaged in constitutionally protected conduct; (2) he suffered an adverse action sufficient to deter a person of ordinary firmness from exercising his constitutional rights; and (3) the constitutionally protected conduct was “a substantial or motivating factor” for the adverse action. See Rauser v. Horn, 241 F.3d 330, 333 (3d Cir. 2001); see also Mitchell v. Horn, 318 F.3d 523, 530 (3d Cir. 2003). Conclusory allegations of retaliation are insufficient to state a claim upon which relief can be granted. Oliver v. Roquet, 858 F.3d 180, 195 (3d Cir. 2017).
Here, Maldanado satisfies the first requirement of a retaliation claim. The filing of a lawsuit or a prison grievance constitutes protected activity under the First Amendment. Fantone, 780 F.3d at 191. Maldanado asserts in Counts I and II that the alleged retaliatory conduct took place “in an attempt to discourage [Maldanado] from continuing to lodge verbal and written complaints regarding prison conditions at SCI Huntingdon.” (Doc. 224, ¶ 21). Maldanado also states “Ralston knew [Maldanado] engaged in constitutionally protected conduct under the First Amendment when [Maldanado] filed a lawsuit, and submitted grievances, and request slips ....” (Doc. 224, ¶ 32). Thus, Maldanado satisfies the first requirement.
Next, Maldanado satisfies the second requirement because he alleges that the transfer to another prison, calling him a “rat” in front of other inmates, and termination of his prison employment caused Maldanado to suffer “psychological and mental harm.” (Doc. 224, ¶¶ 29, 37). The Court has acknowledges that “the Constitution itself does not give rise to a liberty interest in avoiding transfer to more adverse conditions of confinement,” and inmates generally have no due process liberty interest in how they are classified or where they are incarcerated. Small v. Kauffman, No. 1:20-CV-01242, 2022 WL 3036050, at *5 (M.D. Pa. Aug. 1, 2022) (quoting Wilkinson v. Austin, 545 U.S. 209, 221 (2005); see Meachum v. Fano, 427 U.S. 215, 225 (1976) (“That life in one prison is much more disagreeable than in another does not in itself signify that a Fourteenth Amendment liberty interest is implicated when a prisoner is transferred to the institution with the more severe rules.”); Ali v. Gibson, 631 F.2d 1126, 113435 (3d Cir. 1980) (a prisoner has no liberty interest in remaining at a particular prison and the Constitution does not require a hearing prior to a transfer)). However, a transfer in retaliation for the exercise of a constitutional right is an actionable constitutional violation. Small, 2022 WL 3036050, at *5 (quoting Underwood v. Mendez, No. 3:04-CV-1624, 2005 WL 2300631, *5 (M.D. Pa. Sep. 9, 2005)). Therefore, Maldanado has satisfied the second requirement.
Regarding the third requirement-whether Maldanado's constitutionally protected conduct was a motivating factor for the alleged retaliation-Defendants argue that Maldanado offers no evidence to demonstrate or suggest “is vague allegations that the decision to transfer him, the alleged removal from his work assignment and the alleged labeling of him as a ‘rat' were in any way linked to his litigious efforts or the exercise of any other constitutional rights.” (Doc. 229, at 11). It is Maldanado's burden to adduce evidence sufficient to permit an inference that Defendants' actions against him were causally connected to his protected activity. See Hannon v. Speck, Civ. A. No. 87-3210, 1988 WL 131367 at *4 (E.D. Pa. Dec.6, 1988) (“In bringing a § 1983 action alleging such retaliation, an inmate faces a substantial burden in attempting to prove that the actual motivating factor ... was as he alleged.”) (internal quotes and citation omitted), aff'd, 888 F.2d 1380 (3d Cir. 1988). Essentially, Maldanado must establish a causal nexus between his protected activity and the motives of the Defendants in taking the allegedly retaliatory actions. Typically, a plaintiff may meet this burden by “produc[ing] direct evidence of motivation or, the more probable scenario, ‘allege a chronology of events from which retaliation may plausibly be inferred.'”)). Evans v. Rozum, No. CIV.A. 07-2301, 2009 WL 5064490, at *20 (W.D. Pa. Dec. 17, 2009) (quoting Jones v. Greninger, 188 F.3d 322, 325 (5th Cir. 1999); Woods v. Smith, 60 F.3d 1161, 1166 (5th Cir. 1995)).
Maldanado's retaliation claims in Counts I and II are not clear. First, Maldanado claims Defendants transferred him to another prison facility on March 23, 2022, in retaliation for his filing of the lawsuit, Molina v. Kauffman, No. 4:21-CV-00038, and grievances against each Defendant regarding “retaliatory tactics” on January 27, 2022, and February 8, 2022, respectively. (Doc. 224, ¶¶ 13-15, 21, 33). Maldanado fails to connect the filing of those grievances to any specific retaliatory acts on the part of Defendants apart from simply stating that Defendants' motivating factors for having him transferred was their knowledge of Maldanado's lawsuit alleging unconstitutional prison conditions at SCI-Huntingdon and verbal and written grievances against staff. Moreover, for temporal proximity alone to establish causation the “timing of the alleged retaliatory action must be ‘unusually suggestive' of retaliatory motive because a causal link will be inferred.” Estate of Smith v. Marasco, 318 F.3d 497, 512 (3d Cir. 2003) (quoting Krouse v. Am. Sterilizer Co., 126 F.3d 494, 503 (3d Cir. 1997)). “[T]emporal proximity must be measured in days, rather than in weeks or months, to suggest causation without corroborative evidence.” Conklin v. Warrington Tp., Civ. No. 062245, 2009 WL 1227950, *3 (M.D. Pa. Apr. 30, 2009). Given that the alleged retaliation events took place on or after March 23, 2022, more than a month after the February 2022 grievance was filed, Maldanado fails to establish an unusually suggestive temporal proximity between the filing of the lawsuit and grievances, and the alleged retaliatory action. Conklin, 2009 WL 1227950, *3. Therefore, Maldanado fails to meet his burden to show a particularly suggestive chronology of events to permit causation.
Because Maldanado has not alleged facts to plead a claim of retaliation and has only offered conclusory allegations of retaliatory motives that are unsupported by material facts, the undersigned finds that Maldanado has failed to state a claim of First Amendment retaliation. Oliver, 858 F.3d at 195. Accordingly, it is recommended that the Court grant Defendants' motion to dismiss and dismiss Counts I and II of the fourth amended complaint.
C. Count III
Finally, Defendants move to dismiss Count III of the fourth amended complaint, arguing that “Maldanado fails to present any evidence to substantiate his bald assertions of failure to protect on the part of Defendant Ralston.” (Doc. 229, at 14). Defendants aver that “[a]bsent proof that Defendant Ralston was actually aware of the existence of an excessive risk to Maldanado's safety by making this alleged statement, Maldanado cannot prove an essential element of his failure to protect claim.” (Doc. 229, at 15). In opposition, Maldanado argues:
Defendant Ralston knew very well that his comments could and would have consequences as SCI Huntingdon is considered a “Maximum security prison” who houses some of the most violent offenders in the State of Pennsylvania, specifically, in BA Unit where there is a high percentage of “Lifers,” inmates who have been in “Gang Units,” and SMU's which is a housing unit for violent prisoners, thus, he knew very well that calling Maldanado a “rat” in front of other inmates would lead to violence, which was his intended purpose for calling Maldanado a “rat” in front of other inmates.(Doc. 232, at 7-8).
“[T]he Eighth Amendment's Cruel and Unusual Punishments Clause imposes on prison officials ‘a duty to protect prisoners from violence at the hands of other prisoners.'” Bistrian v. Levi, 696 F.3d 352, 366-67 (3d Cir. 2012) (quoting Farmer v. Brennan, 511 U.S. 825, 833 (1994)). Prison officials must take reasonable measures to do so. Farmer, 511 U.S. at 833. “Being violently assaulted in prison is simply not ‘part of the penalty that criminal offenders pay for their offenses against society.' ” Farmer, 511 U.S. at 834 (quoting Rhodes v. Chapman, 452 U.S. 337, 347 (1981)). Still, prison officials do not incur constitutional liability for every injury suffered by a prisoner. Farmer, 511 U.S. at 834.
Two factual scenarios can give rise to a failure to protect claim in an inmate-on-inmate assault case. See Scott v. Clark, No. 1:19-CV-00169, 2020 WL 4905624, at *4 (W.D. Pa. July 28, 2020), report and recommendation adopted, No. 1:19-CV-169-SPB-RAL, 2020 WL 4904212 (W.D. Pa. Aug. 20, 2020). First, such claims may arise where prison officials fail to respond to a particularized threat. See Scott, 2020 WL 4905624, at *4. Second, a failure to protect claim can also arise when a prisoner is assaulted as a result of conditions or practices dangerous to all prisoners or an identifiable group of them. See Farmer, 511 U.S. at 843. Here, Maldanado alleges the second type of case because he makes no allegation of a particularized threat from another inmate. (Doc. 224). In fact, the fourth amended complaint is devoid of any assertion that Ralston was actually aware of the existence of an excessive risk to Maldanado's safety by allegedly making the contentious statement. Instead, Maldanado makes the broad allegation in his brief in opposition to the motion to dismiss that Ralston knew of a particular threat that is always present at SCI-Huntingdon.
To state a cognizable failure to protect claim under § 1983, two conditions must be met. First, where, as in this case, the claim turns on a “failure to prevent harm, the inmate must show that he is incarcerated under conditions posing a substantial risk of harm.” Farmer, 511 U.S. at 843 (citing Helling v. McKinney, 509 U.S. 25, 35 (1993)). Second, the inmate must show that prison officials acted with deliberate indifference to the safety of the inmate. Farmer, 511 U.S. at 843; see also Zuniga v. Chamberlain, 821 Fed.Appx. 152, 157 n.8 (3d Cir. 2020). The test for deliberate indifference is twofold: “the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.” Farmer, 511 U.S. at 837.
The undersigned finds that Count III fails to state a claim upon which relief may be granted. Maldanado fails to allege that there were any previous problems between inmates or that the alleged perpetrator of the assault had a history of violent attacks. See Proctor v. James, 811 Fed.Appx. 125, 128 (3d Cir. 2020). Likewise, Maldanado fails to allege that “prior to the assault, . . . any other prison official was aware of facts that would have led a reasonable person to believe that [Maldanado's] personal safety was at risk.” Grier v. Clark, No. 1:19-CV-00117, 2020 WL 2105859, at *6 (W.D. Pa. Apr. 7, 2020), report and recommendation adopted, 2020 WL 2104794 (W.D. Pa. May 1, 2020). Maldanado's claim is not supported by any specific factual averments, such as the number of prior assaults committed by the offending inmate or proof of Ralston's knowledge of the existence of an excessive risk to Maldanado's safety. Thus, Maldanado's allegations are mere speculation of the kind previously considered insufficient. See Myer v. Giroux, No. 15-CV-71, 2018 WL 6831147, at *8 (W.D. Pa. Dec. 28, 2018) (finding allegations of an inmate's propensity for violence to represent the type of speculative entreaty that the Third Circuit and other courts have routinely found inadequate to support an Eighth Amendment claim); Bistrian, 696 F.3d at 369-71 (rejecting an inference of deliberate indifference based solely on a prison official's awareness of a particular inmate's propensity for violence).
The undersigned finds that Count III of the fourth amended complaint does not allege sufficient evidence to support a plausible failure to protect claim against Ralston. Accordingly, it is recommended that the Court grant Defendants' motion to dismiss and dismiss Count III of the fourth amended complaint.
IV. Leave to Amend
The Third Circuit has instructed that if a complaint is vulnerable to dismissal for failure to state a claim, the district court must permit a curative amendment, unless an amendment would be inequitable or futile. See Grayson, 293 F.3d at 108; Shane v. Fauver, 213 F.3d 113, 116-17 (3d Cir. 2000). The Third Circuit has also acknowledged that a district court has “substantial leeway in deciding whether to grant leave to amend.” Lake v. Arnold, 232 F.3d 360, 373 (3d Cir. 2000); see also Ruffin v. Mooney, No. 3:16-CV-1987, 2017 WL 3390361, at *2 (M.D. Pa. Jan. 31, 2017) (dismissing prisoner-plaintiff's case without prejudice where it was unclear whether he was seeking relief under § 1983 or a habeas statute).
Despite taking the facts in the fourth amended complaint as true and providing Maldanado with all reasonable inferences arising from the facts, the undersigned finds that he simply cannot make out a First Amendment retaliation claims or an Eighth Amendment failure to protect claim against Defendants. Moreover, Maldanado has not requested leave to amend the complaint. The Court has already granted Maldanado leave to amend and assert additional allegations four separate times, and each time Maldanado has been unable to allege additional facts that could support a finding of constitutional violations with respect to Defendants. Therefore, the undersigned finds that further amendment would be futile. See Jones v. Unknown D.O.C. Bus Driver & Transp. Crew, 944 F.3d 478, 483 (3d Cir. 2019) (concluding amendment by pro se prisoner would be futile when prisoner “already had two chances to tell his story”); Fletcher-Harlee Corp. v. Pote Concrete Contractors, Inc., 482 F.3d 247, 252 (3d Cir. 2007) (“[I]n civil rights cases district courts must offer amendment-irrespective of whether it is requested-when dismissing a case for failure to state a claim unless doing so would be inequitable or futile.”); Grayson, 293 F.3d at 114 (explaining that “in forma pauperis plaintiffs who file complaints subject to dismissal under Rule 12(b)(6) should receive leave to amend unless amendment would be inequitable or futile”).
Accordingly, it is recommended that the Court not grant Maldanado leave to file a fifth amended complaint.
V. Recommendation
Based on the foregoing, it is respectfully recommended that Defendants' motion to dismiss (Doc. 228) be GRANTED, and the Clerk of Court be directed to CLOSE this action.
NOTICE
NOTICE IS HEREBY GIVEN that the undersigned has entered the foregoing Report and Recommendation dated May 9, 2023. Any party may obtain a review of the Report and Recommendation pursuant to Rule 72.3, which provides:
Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636(b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses or recommit the matter to the magistrate judge with instructions.