Opinion
Civil Action 19 - 1460
12-13-2021
JEROME JUNIOR WASHINGTON, Plaintiff, v. CAPTAIN CRUM, LT. TROUT, U.M. LACKEY, MAJOR BAZUS, CERT TEAM JOHN DOES 1 TO 12, Defendants.
1 Rockview Place Counsel for Defendants
1 Rockview Place Counsel for Defendants
District Judge Joy Flowers Conti
REPORT AND RECOMMENDATION
Lisa Pupo Lenihan. United States Magistrate Judge
I. RECOMMENDATION
For the following reasons, it is respectfully recommended that the Motion for Judgment on the Pleadings filed by Defendants Crum, Lackey, Trout and Bazus (ECF No. 36) be granted.It is also recommended that Defendants Crum, Lackey and Bazus be terminated from this case as no claims would remain against these Defendants if the Motion for Judgment on the Pleadings is granted.
Although not referred to as a partial Motion for Judgment on the Pleadings, the Motion was filed only as to some claims. In particular, the excessive force claim against Defendant Trout is not part of the Motion, nor are any claims against the CERT Team John Does 1 to 12 as they have not yet been served.
II. REPORT
A. Background
Jerome Junior Washington (“Plaintiff”) is an inmate in the custody of the Pennsylvania Department of Correction (“DOC”) and is currently incarcerated at the State Correctional Institution (“SCI”) Rockview. His Complaint, which was docketed on October 28, 2020, appears to allege violations of his First, Fifth, Eighth and Fourteenth Amendment rights under the United States Constitution. (ECF No. 23, ¶¶ 1-4.) His claims stem out of an incident that occurred on January 11, 2019, when Plaintiff was an inmate at SCI-Greene where Plaintiff had been previously confined. Plaintiff alleges that on January 11, 2019, he took the wicket in his cell hostage in order to get revenge for the “wrong” that lead to the cancellation of group earlier that day. He admits to throwing feces “trying to hit [his] target, ” and in response to his behavior Lt. Trout and a CERT team was called to extract him from his cell. Plaintiff states that while he was being escorted by the CERT team he “jump[ed] up into the air [and] kicked off of the wall glid[ing] smoothly to the shield-man w[h]ere I was (tactile) [sic] roughly to another official as the th[re]e of us fall to the grown [sic].” While on the ground, Plaintiff alleges that he was punched numerous times in the face and his hair was pulled out while officials tried to snap his neck and choke him. Plaintiff was then placed into a restraint chair and pushed to the strip-cage room where he claims he sat “for hours”. He then claims that he was roughed up by the CERT team, who did not know how to properly utilize the restraints, placed down onto a sheet and that he was intentionally cut numerous times while they tried to cut off his clothes. After he was seen by a nurse who took pictures of his injuries, Plaintiff was put into what he calls an “accountability cell” with no bed or toilet water for approximately four days.
The moving Defendants (hereinafter referred to as “Defendants”) have moved for judgment on the pleadings on certain claims in the Complaint pursuant to Federal Rule of Civil Procedure 12(c) (ECF Nos. 36 & 37) and Plaintiff has filed a response in opposition thereto (ECF No. 60). The Defendants' Motion is now ripe for review.
The moving Defendants are: Captain Crum, Lt. Trout, U.M. Lackey, and Major Bazus. Defendant also names CERT Team John Does 1 to 12 as Defendants, but they have not yet been served because they have not yet been identified.
B. Standard of Review
Under Federal Rule of Civil Procedure 12(c), a party may move for judgment on the pleadings after the pleadings are closed but within such time as to not delay the trial. Fed.R.Civ.P. 12(c). Judgment on the pleadings under Rule 12(c) may be granted “only if, viewing all the facts in the light most favorable to the nonmoving party, no material issue of fact remains and the moving party is entitled to judgment as a matter of law.” Knepper v. Rite Aid Corp., 675 F.3d 249, 257 (3d Cir. 2012) (citing Rosenau v. Unifund Corp., 539 F.3d 218, 221 (3d Cir. 2008)). “A motion for judgment on the pleadings based on the defense that the plaintiff has failed to state a claim is analyzed under the same standards that apply to a Rule 12(b)(6) motion.” Revell v. Port Auth. of N.Y. & N.J., 598 F.3d 128, 134 (3d Cir. 2010) (citing Turbe v. Gov't of the Virgin Islands, 938 F.2d 427, 428 (3d Cir. 1991)). Thus, in this regard the standard of review is identical to that of a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6). Turbe, 938 F.2d at 428 (citations omitted). The only notable difference is that a court, for a motion on the pleadings, may review not only the complaint but also the answer and written instruments attached to the pleadings. Brautigam v. Fraley, 684 F.Supp.2d 589, 591-92 (M.D. Pa. 201). Despite this difference, courts in this circuit have consistently stated that the distinction between the two standards is “merely semantic.” Christy v. We The People Forms & Serv. Ctrs., 213 F.R.D. 235, 238 (D. N.J. 2003); see Smith v. City of Phila., 345 F.Supp.2d 482, 485 (E.D. Pa. 2004).
Also, 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.”) (quoting Higgins, 293 F.3d at 688). 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, 2102 (10th Cir. 1996).
C. Discussion
1. Defendants are entitled to judgment on Plaintiff's claims for monetary relief asserted against them in their official capacities.
Defendants first move for judgment on all claims asserted against them insofar as Plaintiff is suing them in their respective official capacities. In this regard, it is well established that lawsuits seeking retrospective relief by private persons against a state, state officials, and state entities are generally barred by the Eleventh Amendment. See Regents of the Univ. of Cal. v. Doe, 519 U.S. 425, 429 (1997) (stating that “[i]t has long been settled” that the Eleventh Amendment applies to “not only actions in which a State is actually named as the defendant, but also certain actions against state agents and instrumentalities”). Relevant here, Eleventh Amendment immunity bars actions for retroactive relief against state officials acting in their official capacity because “‘a judgment against a public servant in his official capacity imposes liability on the entity that he represents . . . .'” Kentucky v. Graham, 473 U.S. 159, 169 (1985) (quoting Brandon v. Holt, 469 U.S. 464, 471 (1985)); see also Will v. Michigan Dept. of State Police, 491 U.S. 58, 71 (1989) (“[A] suit against a state official in his or her official capacity is not a suit against the official but rather is a suit against the official's office. . . . As such, it is no different from a suit against the State itself.”). Thus, “when the action is in essence one for the recovery of money from the state, the state is the real, substantial party in interest and is entitled to invoke its sovereign immunity from suit even though individual officials are nominal defendants.” Ford Motor Co. v. Department of Treasury of State of Indiana, 323 U.S. 459, 464 (1945). A state may waive the defense by consenting to be sued and Congress may abrogate state sovereign immunity pursuant to its power to enforce the Fourteenth Amendment. Koslow v. Pennsylvania, 302 F.3d 161, 168 (3d Cir. 2002).
In this case, Plaintiff seeks monetary damages against the Defendants, all employees of the Pennsylvania Department of Corrections, and he has sued them in their official capacities, in addition to their individual capacities. However, the Pennsylvania Department of Corrections is undoubtedly a state instrumentality and its officials are state agents. See 71 Pa. C.S.A. § 61 (“executive and administrative work of [the Commonwealth of Pennsylvania] shall be performed by” various executives and administrative agencies, including the “Department of Corrections”). As such, they are protected from suit by Eleventh Amendment immunity unless either exception to state sovereign immunity applies. Pennsylvania, however, has not waived its sovereign immunity defense in federal court, see 42 Pa. C.S.A. § 8521(b), and Congress did not abrogate Eleventh Amendment immunity via 42 U.S.C. § 1983. See Quern v. Jordan, 440 U.S. 332, 345 (1979) (concluding that the history and language of § 1983 indicate that Congress did not intend to make states liable under the statute). Thus, state sovereign immunity prohibits Plaintiff's claims against the Defendants insofar as they are sued in their official capacities and it is recommended that they be granted judgment in their favor as to Plaintiff's claims for monetary relief asserted against them in their official capacities.
2. Defendants are entitled to judgment on Plaintiff's claims for injunctive and declaratory relief.
In addition to monetary relief against the Defendants, Plaintiff appears to be seeking prospective injunctive relief and Defendants move for judgment on the pleadings as to these claims as well. This claim for relief could have relevance to Plaintiff's claims against the Defendants in their official capacities because the law recognizes an exception to the Eleventh Amendment for claims brought against state officials in their official capacities for prospective injunctive relief. This exception to the Eleventh Amendment immunity provides federal courts with authority to issue injunctions against state officers where there is evidence of ongoing violations of federal law and the injunction will afford a plaintiff prospective relief from the illegal state action. Ex parte Young, 209 U.S. 123, 159-60 (1908). Essentially, Ex parte Young provides a means for plaintiffs to seek prospective injunctive relief for ongoing violations of federal law by bringing an official capacity action against state officials, rather than against a state directly, without running afoul of the Eleventh Amendment. See Graham, 473 U.S. at 167 n.14; see also Koslow, 302 F.3d at 177 n.20.
The Court finds that to the extent Plaintiff is seeking injunctive relief against the Defendants, such claims are moot because Plaintiff is no longer incarcerated at SCI-Greene. In this regard, it is well established that the adjudicatory power of a federal court depends upon “the continuing existence of a live and acute controversy.” Steffel v. Thompson, 415 U.S. 452, 459 (1974). “The rule in federal cases is that an actual controversy must be extant at all stages of review, not merely at the time the complaint is filed.” Id. at 459 n.10. “Past exposure to illegal conduct is insufficient to sustain a present case or controversy regarding injunctive relief if unaccompanied by continuing, present adverse effects.” Rosenberg v. Meese, 622 F.Supp. 1451, 1462 (S.D.N.Y. 1985) (citing O'Shea v. Littleton, 414 U.S. 488, 495-96 (1974)). Thus, a prisoner's transfer or release from the facility complained of moots his claims for injunctive relief because he is no longer subject to the conditions he alleges are unconstitutional. Sutton v. Rasheed, 323 F.3d 236, 248 (3d Cir. 2003); Abdul-Akbar v. Watson, 4 F.3d 195, 206-07 (3d Cir. 1993). While there is an exception to this mootness doctrine when “(1) the challenged action was in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there [is] a reasonable expectation that the same complaining party [will] be subjected to the same action again[, ]” Weinstein v. Bradford, 423 U.S. 147, 349 (1975), the Court cannot speculate that Plaintiff will once again be incarcerated at SCI-Greene, see, e.g., Abdul-Akbar, 4 F.3d at 207. As such, Plaintiff cannot invoke this exception to the mootness doctrine and it is recommended that Defendants be granted judgment in their favor insofar as Plaintiff brings claims against them for injunctive relief.
Plaintiff also appears to be seeking a declaratory judgment in the form of a declaration that Defendants violated his rights under the United States Constitution. However, Plaintiff's request is inappropriate because declaratory judgment is unavailable “solely to adjudicate past conduct” or “to proclaim that one party is liable to another.” Corliss v. O'Brien, 200 Fed.Appx. 80, 84 (3d Cir. 2006); see also Andela v. Administrative Office of the U.S. Courts, 569 Fed.Appx. 80, 83 (3d Cir. 2014) (“Declaratory judgments are meant to define the legal rights and obligations of the parties in the anticipation of some future conduct.”). As Plaintiff essentially seeks a declaration that Defendants' past actions violated his rights in various respects, he is not entitled to declaratory relief and therefore it is also recommended that Defendants be granted judgment in this regard, as well.
3. Defendants are entitled to judgment to the extent Plaintiff is attempting to set forth a claim for a violation of his right to access the courts under the First Amendment.
As noted by Defendants, Plaintiff appears to assert a denial of access to the courts claim under the First Amendment and said claim appears to be premised on alleged deficiencies in the DOC's Inmate Grievance process. See ECF No. 23, ¶ 1 (“The Defendants refusal to answer grievance saying (BII) Grievance 777909/781948 has gone to the highest level; hereof the default in Plaintiff's grievance upon prison administration refusing access to SCI-Greene grievance coordination; to stop full access to the court out of retaliatory misconduct[.]”)
While the filing of a prison grievance necessarily “implicates conduct protected by the First Amendment, ” Mitchell v. Horn, 318 F.3d 523, 530 (3d Cir. 2003), neither the Supreme Court nor the Third Circuit has held that a prison is required by the Constitution to offer a grievance procedure to answer submitted grievances. See Simonton v. Tennis, 437 Fed.Appx. 60, 62 (3d Cir. 2011) (“[A]ccess to prison grievance procedures is not a constitutionally-mandated right.”); Heleva v. Kramer, 214 Fed.Appx. 244, 247 (3d Cir. 2007) (“The District Court was correct, however, in concluding that defendants' alleged obstruction of prison grievance procedures does not give rise to an independent claim. Prisoners do not have a constitutional right to prison grievance procedures.”). Instead, “[w]hen the claim underlying the administrative grievance involves a constitutional right, the prisoner's right to petition the government for redress is the right to access the courts, which is not compromised by the prison's refusal to entertain his grievance.” Flick v. Alba, 932 F.2d 728, 729 (8th Cir. 1991). In this regard, refusal on the part of the prison to entertain a prisoner's grievance would simply allow the prisoner to overcome an affirmative defense of non-exhaustion. See Camp v. Brennan, 219 F.3d 279, 281 (3d Cir. 2000) (noting that a prisoner need only exhaust the administrative remedies “as are available”). Accordingly, any alleged inadequacies or deficiencies in the DOC's Inmate Grievance process, or any failure on the part of prison officials here to consider Plaintiff's grievances, does not in and of itself give rise to a constitutional claim and it is therefore recommended that Defendants be granted judgment insofar as Plaintiff is asserting a First Amendment access to courts claim on this basis. See, e.g., Allah v. Thomas, 679 Fed.Appx. 216, 218-19 (3d Cir. 2017); Winn v. Department of Corrections, 340 Fed.Appx. 757, 759 (3d Cir. 2009).
It is further recommended that Defendants also be granted judgment insofar as Plaintiff may not be attempting to assert a stand alone First Amendment claim simply based on the alleged deficiencies or inadequacies in the DOC's Inmate Grievance process, but perhaps instead what may be his belief that these alleged deficiencies or inadequacies somehow hindered his ability to access the courts. To maintain an access to the courts claim under the First Amendment, a plaintiff must demonstrated that “his efforts to pursue a legal claim were hindered and he suffered an actual injury.” Ross v. Clerk of Courts of Court of Common Pleas of Phila., 726 Fed.Appx. 864, 865 (3d Cir. 2018) (citing Lewis v. Casey, 518 U.S. 343, 351 (1996)). “[P]risoners may only proceed on access-to-courts claims in two types of cases, challenges (direct or collateral) to their sentences and conditions of confinement.” Monroe v. Beard, 536 F.3d 198, 2015 (3d Cir. 2008). An inmate raising an access to the courts claim “must describe the underlying claim well enough to show that it is “more than mere hope, ” and he must describe the “lost remedy.” Christopher v. Harbury, 536 U.S. 403, 416-18 (2002). As Defendants point out, it appears that Plaintiff's access to courts claim relates to his ability to bring the instant action as Plaintiff appears to argue that some issue with the DOC's Inmate Grievance process interfered with his ability to present the claims raised in the Complaint to this Court. Given that Plaintiff's Complaint was filed and docketed, Plaintiff has not been prevented from presenting his claims to this Court, and, as stated above, in the event that Defendants do raise a failure to exhaust defense, Plaintiff is free to rebut said defense by putting forth his allegations that the administrative remedies process was not available to him.
4. Defendants are entitled to judgment to the extent Plaintiff has alleged a violation of his rights under the Fifth Amendment.
As noted by Defendants, Plaintiff also appears to assert a claim under the Fifth Amendment's Due Process Clause also premised on what he refers to as his denial of access to the DOC's Inmate Grievance procedure. See ECF No. 23, ¶ 2 (“[S]uch denial of access to DC-ADM 804 grievance procedures violate access to the law itself upon an [sic] due process violation to be able to use the courts hereof is defendants default judgment in favor to Plaintiff; herein.”). “[T]he due process clause under the Fifth Amendment only protects against federal governmental action and does not limit the actions of state officials.” Caldwell v. Beard, 324 Fed.Appx. 186, 189 (3d Cir. 2009) (citing Riley v. Camp, 130 F.3d 958, 972 n.19 (11th Cir. 1997)). In other words, a due process claim under the Fifth Amendment only applies to federal officials. See Bergdoll v. City of York, 515 Fed.Appx. 165, 170 (3d Cir. 2013) (citing Nguyen v. U.S. Catholic Conference, 719 F.2d 52, 54 (3d Cir. 1983)).
As alleged in the Complaint, the Defendants are employed by the Commonwealth of Pennsylvania, and, consequently, they are state officials or actors. See, e.g., Scott v. Erdogan, 2013 WL 791532, at *1 (M.D. Pa. Mar. 4, 2013) (“[A]ll of the defendants are employed by the DOC, making all of the defendants state actors for the purposes of this action.”). Because the Defendants are not federal actors, the Fifth Amendment's Due Process Clause is inapplicable to them and they should therefore be granted judgment to the extent Plaintiff is attempting to assert a Fifth Amendment due process claim against them. See, e.g., Houser v. Folino, 2015 WL 7289405, at *1 (W.D. Pa. Nov. 16, 2015) (“Because Plaintiff's claims are alleged against state actors, any Fifth Amendment claim must fail”); Spell v. Allegheny County Administration, 2015 WL 1321695, at *5 (W.D. Pa. Mar. 24, 2015) (same). Cf. Banks v. Mozingo, 423 Fed.Appx. 123, 128 (3d Cir. 2011) (“[S]ince none of the defendants are agents of the federal government, the Fifth Amendment is inapplicable.”) (citing Chavez v. Martinez, 538 U.S. 760, 788 (2003)).
5. Defendants are entitled to judgment to the extent Plaintiff's Fourteenth Amendment claims are based on the same allegations underlying his Eighth Amendment claims and/or to the extent that they are based on alleged deficiencies in the DOC's Inmate Grievance Procedure.
Plaintiff's Complaint purports to assert claims under the Fourteenth Amendment. See ECF No. 23, ¶ 4. It is unclear, however, whether Plaintiff's Fourteenth Amendment claims arise out of the same factual allegations that support his Eighth Amendment claims or whether they are based on alleged inadequacies or deficiencies in the DOC's Inmate Grievance Procedure, which were noted above with respect to Plaintiff's First Amendment access to courts claim. Id.
To the extent Plaintiff's Fourteenth Amendment due process claims are based on the same allegations underlying his Eighth Amendment claims, they are precluded by the explicit textual source rule announced by the Supreme Court in Albright v. Oliver, 510 U.S. 266 (1994). Specifically, in Albright, the Supreme Court stated that “[w]here a particular Amendment provides an explicit textual source of constitutional protection against a particular sort of government behavior, that Amendment, not the more generalized notion of substantive due process, must be the guide for analyzing such a claim.” Id. at 273 (internal quotations omitted). If Plaintiff is, in fact, alleging due process violations relating to the excessive force claims and/or conditions of confinement claims that he purports to assert in his Complaint, his claims are properly addressed through the Eighth Amendment. See Banks, 423 Fed.Appx. at 128 (citing Albright, 510 U.S. at 273); see also Mohamad v. Barone, 494 Fed.Appx. 212, 214-15 (3d Cir. 2012) (“The District Court correctly noted that [plaintiff's] allegations of due process violations related to excessive force, conditions of confinement, and his medical care during his restraint are properly addressed through the Eighth Amendment”). As such, Defendants would be entitled to judgment in this regard.
If, instead, Plaintiff's Fourteenth Amendment due process claims are based on alleged inadequacies or deficiencies in the DOC's Inmate Grievance Procedure, Defendants would be entitled to judgment for the same reasons discussed above with respect to Plaintiff's claim for a violation of access to the courts under the First Amendment. Specifically, any alleged denial of access to such grievance procedures, or the refusal to respond to a grievance and/or appeal, does not in and of itself give rise to a constitutional claim. See, e.g., Winn, 340 Fed.Appx. At 759 (finding that warden did not violate inmate's due process rights by refusing to allow inmate to appeal denial of grievance because there is no constitutionally mandated right to a prison grievance procedure). As previously stated, such a failure on the part of the prison would at most allow Plaintiff to overcome an affirmative defense of exhaustion. Consequently, Defendants should be granted judgment in this regard as well.
6. Defendants Crum, Lackey and Bazus are entitled to judgment as Plaintiff has failed to sufficiently or adequately allege their personal involvement in the asserted violations of his rights.
Finally, Defendants move for judgment on the basis that Plaintiff has not made any specific allegations against Defendants Crum, Lackey and Bazus, and it appears as though Plaintiff's claims against them arise from and rely solely on their supervisory positions at SCI-Greene. In this regard it is well settled that a “defendant in a civil rights action must have personal involvement in the alleged wrongs; liability cannot be predicated solely on the operation of respondeat superior.” 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 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)). A plaintiff must aver this personal involvement through allegations of participation, personal direction or actual knowledge and acquiescence, and these allegations “must be made with appropriate particularity.” Rode, 845 F.2d at 1207; see also Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009) (“Because vicarious liability is inapplicable to Bivens and § 1983 suits, a plaintiff must plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution.”); Santiago v. Warminster Twp., 629 F.3d 121, 130 (3d Cir. 2010) (quoting Hedges v. Musco, 204 F.3d 109, 121 (3d Cir. 2000)) (“Particularly after Iqbal, the connection between the supervisor's directions and the constitutional deprivation must be sufficient to ‘demonstrate a plausible nexus' or ‘affirmative link' between the [directions] and the specific deprivation of constitutional rights at issue.'”).
In the context of a defendant who is alleged to have performed in a supervisory role, courts have identified two general instances in which either the conduct of that supervisor-defendant or the policies and procedures of that supervisor-defendant may amount to personal involvement and thereby warrant a finding of individual, supervisory liability for a constitutional tort. First, supervisory liability may attach if the supervisor personally “participated in violating the plaintiff's rights, directed others to violate them, or, as the person in charge, had knowledge of and acquiesced” in a subordinate's unconstitutional conduct. A.M. ex rel. J.M.K. v. Luzerne Cnty. Juvenile Det. Ctr., 372 F.3d 572, 586 (3d Cir. 2004) (citing Baker v. Monroe Twp., 50 F.3d 1186, 1190-91 (3d Cir. 1995)). Second, liability may attach if the supervisor, “with deliberate indifference to the consequences, established and maintained a policy, practice or custom which directly caused [the] constitutional harm.” Id. (quoting Stoneking v. Bradford Area Sch. Dist., 882 F.2d 720, 725 (3d Cir. 1989)). In this second instance, “to hold a supervisor liable because his policies or practices led to an Eighth Amendment violation, the plaintiff must identify a specific policy or practice that the supervisor failed to employ and show that: (1) the existing policy or practice created an unreasonable risk of the Eighth Amendment injury; (2) the supervisor was aware that the unreasonable risk was created; (3) the supervisor was indifferent to that risk; and (4) the injury resulted from the policy or practice.” Beers-Capitol v. Whetzel, 256 F.3d 120, 134 (3d Cir. 2001) (citing Sample v. Diecks, 885 F.2d 1099, 1118 (3d Cir. 1989)).
Here, the allegations in Plaintiff's Complaint fail to establish he requisite personal involvement in the claimed underlying violations with respect to Defendants Crum, Lackey and Bazus. As Defendants correctly point out, there are no allegations whatsoever ascribing any action or conduct to these Defendants. Rather, Plaintiff attributes the claimed unconstitutional conduct related to the alleged use of excessive force on January 11, 2019 to Defendant Trout and “CERT Team John Does 1 to 12.” Additionally, Plaintiff does not allege that Defendants Crum, Lacky and Bazus were present during this incident, that any of them directed Defendant Trout or the “CERT Team John Does 1 to 12” to commit an unconstitutional assault on Plaintiff or that they were otherwise aware of and acquiesced in the assault before it occurred. Instead, it appears that Plaintiff has named these three Defendants only because of their respective supervisory positions at SCI-Greene. However, this is not sufficient to establish their personal involvement and for this reason their Motion should be granted.
III. CONCLUSION
For the aforementioned reasons, it is respectfully recommended that the Motion for Judgment on the Pleadings filed by Defendants Crum, Lackey, Trout and Bazus (ECF No. 36) be granted. It is also recommended that Defendants Crum, Lackey and Bazus be terminated from this case as no claims would remain against these Defendants if the Motion for Judgment on the Pleadings is granted. For clarity purposes, if this Report and Recommendation is adopted by the Court then the only claims remaining in this action would be the excessive force claim against Defendant Trout and the claims raised against Defendants CERT Team John Does 1 to 12, which, as far as the undersigned can make out appears to only be a claim of excessive force.
In accordance with the Federal Magistrate Judge's Act, 28 U.S.C. §636(b)(1)(B) and (C), and Rule 72.D.2 of the Local Rules of Court, the parties are allowed fourteen (14) days from the date of service of this Report and Recommendation to file written objections thereto. Any party opposing such objections shall have fourteen (14) days from the date of service of objections to respond thereto. Failure to file timely objections will constitute a waiver of any appellate rights.