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Plaintiff currently resides at 335 Market Street, Apt. 6A, Harrisburg, PA

17101. (See Doc. No. 36).

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF PENNSYLVANIA

ARTIE MCCLOUD, :

Plaintiff : CIVIL ACTION NO. 4:04-0943

v. : (MCCLURE, D.J.)

 (MANNION, M.J.)

SUPT. SHANNON; PHYSICIAN :

OF S.C.I. FRACKVILLE (JOHN 

DOE); PHYSICIAN ASSISTANT :

(JOHN DOE); D.J. SEARFOSS,

C.C.P.M.; J. MILLER, C.O.V.; and :

HEARING EXAMINER (JOHN

DOE), :

Defendants :

REPORT AND RECOMMENDATION

Pending before the court is a motion to dismiss the plaintiff’s complaint

filed on behalf of defendants Shannon, Searfoss, and Miller. (Doc. No. 20).

Based upon a review of the plaintiff’s complaint, it is recommended that the

motion to dismiss be granted.

I. PROCEDURAL BACKGROUND

On April 29, 2004, the plaintiff, a former inmate at the State Correctional

Institution, Frackville, (“SCI-Frackville”), Pennsylvania1

, filed a complaint in

which he alleged violations of his constitutional rights pursuant to 42 U.S.C.

§ 1983. (Doc. No. 1).

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The defendants’ supporting exhibits consist only of the plaintiff’s original

and amended complaints. Therefore, the court need not convert the

defendants’ motion to one for summary judgment.

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On May 12, 2004, the plaintiff filed the appropriate application to

proceed in forma pauperis and authorization form. (Doc. Nos. 6 & 7). As a

result, a financial administrative order was issued that same day. (Doc. No.

8).

By order dated May 24, 2004, it was directed that process issue. (Doc.

No. 10).

Prior to the defendants filing a response to the plaintiff’s complaint, on

June 28, 2004, the plaintiff filed a document titled “Amended and

Supplemental Pleadings,” in which he added defendants and included

additional allegations. (Doc. No. 12). By order dated July 6, 2004, the court

construed the plaintiff’s filing as an amended complaint and directed service

of the filing upon the defendants. (Doc. No. 13).

On September 17, 2004, the instant motion to dismiss the plaintiff’s

complaint was filed on behalf of defendants Shannon, Searfoss, and Miller.

(Doc. No. 20). After having been granted an extension of time to do so, the

defendants filed a brief and exhibits2

 in support of their motion to dismiss on

November 3, 2004. (Doc. Nos. 28 & 29). Again, having been granted an

extension of time to do so, on January 21, 2005, the plaintiff filed a brief in

opposition to the defendants’ motion to dismiss. (Doc. Nos. 31 & 32).

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II. MOTION TO DISMISS STANDARD

Defendants’ motion to dismiss is brought pursuant to provisions of

Fed.R.Civ.P. 12(b)(6). This rule provides for the dismissal of a complaint, in

whole or in part, if the parties fail to state a claim upon which relief can

granted. Dismissal should only occur where it appears that the plaintiff can

prove no set of facts in support of his claim which would entitle him to relief.

Conley v. Gibson, 355 U.S. 41, 45-46 (1957). Accordingly, dismissal is

appropriate “only if, after accepting as true all of the facts alleged in the

complaint, and drawing all reasonable inferences in the plaintiff’s favor, no

relief could be granted under any set of facts consistent with the allegations

of the complaint.” Trump Hotel and Casino Resorts, Inc. v. Mirage Resorts,

Inc., 140 F.3d 478, 483 (3d Cir. 1998)(citing ALA, Inc. v. CCair, Inc., 29 F.3d

855, 859 (3d Cir. 1994)).

In deciding a motion to dismiss, a court should generally consider only

the allegations contained in the complaint, the exhibits attached to the

complaint, matters of public record, and “undisputably authentic” documents

which plaintiff has identified as the basis of his claim. See Pension Benefit

Guarantee Corp. v. White Consolidated Industries, Inc., 998 F.2d 1192, 1196

(3d Cir. 1993).

It must also be remembered that when considering a motion to dismiss

under Rule 12(b)(6), the important inquiry is not whether the plaintiff will

ultimately prevail on the merits of his claim, but only whether he is entitled to

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offer evidence in support of them. Scheuer v. Rhodes, 416 U.S. 233, 236

(1974).

III. DISCUSSION

The plaintiff alleges in his amended complaint that on April 19, 2004, he

was called to the medical department at SCI-Frackville where a physician’s

assistant told him he had to give back a walking cane which he had

apparently previously been prescribed. (Doc. No. 12, ¶ 9). Due to the

confiscation of his cane, the plaintiff alleges that he could not leave his cell

and was, therefore, without food and/or medication for two (2) days. (Id. at ¶¶

9-11).

On April 21, 2004, the plaintiff alleges that an unnamed correctional

officer called the sergeant, who arranged to have the plaintiff taken to the

medical department in a wheelchair. The plaintiff claims, however, that when

he arrived at the medical department, the physicians’ assistant ordered that

he be returned to his unit without treatment. (Doc. No. 12, ¶¶ 12-14).

When he arrived back at his unit, the plaintiff alleges that he was unable

to get out of the wheelchair. As a result, he alleges that the physician’s

assistant issued him a misconduct and he was placed in administrative

custody as punishment. (Doc. No. 12, ¶ 15).

After having been in administrative custody for a period of five (5) days,

the plaintiff alleges that a hearing examiner came to his cell to have him enter

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The plaintiff does not indicate the result of his conversation with

defendant Miller.

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a plea to the misconduct. (Doc. No. 12, ¶ 16). According to the plaintiff, the

hearing examiner found him guilty of the misconduct and sentenced him to

sixty (60) days in the Restricted Housing Unit, (“RHU”). The plaintiff claims

that his placement in the RHU was in retaliation for his filing a lawsuit against

defendant Shannon. (Id. at ¶¶ 17-18).

The plaintiff alleges that he went on a hunger strike for approximately

seventy-two (72) hours expecting that Department officials would be notified

and intervene on his behalf. (Doc. No. 12, ¶ 20). After a period of seven (7)

days, the plaintiff alleges that he spoke with defendant Miller to find out why

no one had intervened on his behalf3

. (Id. at ¶ 21).

Based upon the foregoing, the plaintiff alleges violations of his First,

Eighth and Fourteenth Amendment rights. (Doc. No. 12, ¶¶ 22-28). The

plaintiff is seeking declaratory and injunctive relief, as well as compensatory

and punitive damages.

The defendants initially argue that the plaintiff’s complaint should be

dismissed as against defendant Shannon for the plaintiff’s failure to state a

claim upon which relief can be granted. To this extent, the defendants argue

that the plaintiff’s only theory of liability against defendant Shannon is based

upon respondeat superior. (Doc. No. 28, pp. 6-8).

To state a claim under § 1983, the plaintiff must show that the

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The court notes that the plaintiff indicates in the “Legal Claims” section

of his amended complaint that he encountered defendant Shannon in the

medical department in February. However, there is no indication from the

plaintiff’s amended complaint that this “encounter” had anything to do with the

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defendants, acting under color of state law, deprived him of a right secured by

the Constitution or laws of the United States. 42 U.S.C. § 1983; Morse v.

Lower Merion School District, 132 F.3d 902 (3d Cir. 1997); Maine v. Thiboutot,

448 U.S. 1 (1980). Moreover, liability under § 1983 is personal in nature and

can only follow personal involvement in the alleged wrongful conduct shown

through specific allegations of personal direction or of actual knowledge and

acquiescence. Robinson v. City of Pittsburgh, 120 F.3d 1286 (3d Cir.

1997)(citing Rhode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988)).

Relief cannot be granted against a defendant pursuant to § 1983 based solely

on the theory of respondeat superior or the fact that the defendant was the

supervisor or superior of the person whose conduct actually deprived the

plaintiff of one of his federally protected rights under color of state law. Rouse

v. Plantier, 182 F.3d 192 (3d Cir. 1999); Hampton v. Holmesburg Prison

Officials, 546 F.2d 1077 (3d Cir. 1976); Goode v. Rizzo, 506 F.2d 542, 550

(3d Cir. 1974), rev'd on other grounds, Rizzo v. Goode, 423 U.S. 362 (1976).

In this case, other than naming defendant Shannon as the Warden at

SCI-Frackville, the plaintiff has failed to set forth any allegations which would

indicate that he personally participated in any violation of the plaintiff’s

constitutional rights4

. Therefore, it would appear that the plaintiff is attempting

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alleged violations which are the subject of this complaint and which occurred

in April 2004. (See Doc. No. 12, ¶ 25).

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to hold defendant Shannon liable solely on the basis of respondeat superior,

the defendants’ motion to dismiss should be granted, and the plaintiff’s

complaint dismissed with respect to defendant Shannon.

With respect to defendant Searfoss, again, other than naming him as a

defendant in the action, the plaintiff has failed to set forth any allegations

which would indicate that he was personally involved in any alleged violations

of the plaintiff’s constitutional rights. Therefore, the defendants’ motion to

dismiss should also be granted with respect to defendant Searfoss.

Finally, with respect to defendant Miller, the plaintiff alleges that he

spoke to defendant Miller approximately seven (7) days into his hunger strike

to inquire as to why no Department officials, including defendant Miller,

intervened on his behalf. There is no indication, however, from the plaintiff’s

complaint that defendant Miller was personally involved in the confiscation of

the plaintiff’s cane by the medical department, the subsequent inability of the

plaintiff to receive food or medication, or the misconduct and related

proceedings to which the plaintiff was allegedly subjected. Given this, the

plaintiff has failed to sufficiently allege a constitutional violation with respect

to defendant Miller and the defendants’ motion to dismiss should be granted

with respect to him as well.

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IV. CONCLUSION

On the basis of the foregoing, it is recommended that the motion to

dismiss the plaintiff’s complaint filed on behalf of defendants Shannon,

Searfoss, and Miller, (Doc. No. 20), be GRANTED.

s/ Malachy E. Mannion

MALACHY E. MANNION

United States Magistrate Judge

Date: August 12, 2005

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