IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

TRAMALE LOCKETT, : CIVIL NO. 3:15-CV-1843

:

Plaintiff, : (Judge Kosik)

:

v. : (Magistrate Judge Carlson)

:

:

WARDEN RICHARD SMITH, :

et al., :

:

Defendant. :

REPORT AND RECOMMENDATION

I. Statement of Facts and of the Case

This case comes before us for consideration of a motion to amend the

plaintiff’s complaint. (Doc. 19.) For the reasons set forth below, it is recommended

that this motion be granted in part as follows: The plaintiff’s second amended

complaint, (Doc. 21.), should be filed against defendants Lt. Delkar, Lt. Woods,

Nurse Kimberley, Nurse, Dawn, Nurse Michelle, and C.O. Luzier and served upon

those defendants, but defendants Warden Smith and Nurse Larry should be dismissed

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from this action, since the second amended complaint fails to state a claim of

supervisory liability upon which relief may be granted.

By way of background, the plaintiff, Tramale Lockett, is a prisoner who was

formerly housed at the Centre County Prison. On September 23, 2015, Lockett filed

a pro se civil rights complaint, against eight correctional staff, including Warden

Smith, alleging that some staff had been indifferent to his medical needs, had housed

him in dangerous conditions, and had sanctioned him in retaliation for grievances he

had filed. (Doc. 1.) With respect to Warden Smith, however, Lockett’s complaint

simply alleged “that he has not responded to any of my appeals.” (Doc. 1, ¶13.) No

other well-pleaded allegations are leveled against the warden. We granted Lockett

leave to proceed in forma pauperis in this case, but as part of our legally-mandated

screening review we found that the plaintiff had failed to state a claim ofsupervisory

liability upon which relief may be granted with respect to Warden Smith. Therefore,

we recommended that the court dismiss the complaint as to this defendant, but order

service upon the remaining defendants.

Lockett responded to this Report and Recommendation by filing an amended

complaint, (Doc. 11.), and then by moving to further amend his complaint. (Doc. 19.)

Along with this motion to submit a second amended complaint, Lockett tendered a

proposed second amended complaint to the court. (Doc. 21.) That proposed second

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amended complaint named eight defendants. As to six of these defendants–Lt.

Delkar, Lt. Woods, Nurse Kimberley, Nurse, Dawn, Nurse Michelle, and C.O.

Luzier–Lockett alleges that the defendants were directly involved in actions which

he claims violated his rights. However, with respect to two supervisory defendants,

NurseLarry and Warden Smith, Lockettsimply repeats claims ofsupervisory liability

which we have found to be insufficient to state a claim upon which relief may be

granted. Thus, Lockett merely complains that the Warden failed to act favorably

upon grievances which he filed after-the-fact, and alleges in a summary fashion that

as a supervisor Nurse Larry “is responsible for the Nurses to perform their duties.”

(Doc. 21.) 

Accordingly, upon consideration ofthis motion to amend and proposed second

amended complaint it is recommended that this motion to amend be granted in part,

and the second amended complaintshould be filed against defendants Lt. Delkar, Lt.

Woods, Nurse Kimberley, Nurse, Dawn, Nurse Michelle, and C.O. Luzier and served

upon those defendants, but defendants Warden Smith and Nurse Larry should be

dismissed from this action, since the second amended complaint fails to state a claim

of supervisory liability upon which relief may be granted.

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II. Discussion

A. Rule 15 Standard of Review

Rule 15 of the Federal Rules of Civil Procedure governs amendments and

supplementation of pleadings. Fed. R. Civ. P., Rule 15. Rule 15(a) authorizes a party

to amend his pleading once as a matter of course within 21 days after serving it, or

if the pleading is one to which a responsive pleading isrequired, 21 days after service

of the responsive pleading, or 21 days after service of a dispositive motion under Rule

12, whichever is earlier. Fed. R. Civ. P. 15(a)(1)(A) and (B). “In all other cases, a

party may amend its pleading only with the opposing party’s written consent, or the

court’s leave,” which courts are to freely give “when justice so requires.” Fed. R.

Civ. P. 15(a)(2). 

Consistent with the plain language of this rule, leave to amend rests in the

discretion of the court. That discretion, however, is governed by certain basic

principles, principles that are embodied in Rule 15. In this regard, while Rule 15

provides that leave to amend should be freely given when justice so requires, the

district court still retains broad discretion to deny a motion to amend, Bjorgung v.

Whitetail Resort, LP, 550 F.3d 263 (3d Cir. 2008); Cureton v. National Collegiate

Athletic Ass’n., 252 F.3d 267 (3d Cir. 2001), and may deny a request:

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if the plaintiff's delay in seeking to amend is undue, motivated by bad

faith, or prejudicial to the opposing party. Adams, 739 F.2d at 864.

Delay becomes “undue,” and thereby creates grounds for the district

court to refuse leave, when it places an unwarranted burden on the court

or when the plaintiff has had previous opportunities to amend. Cureton,

252 F.3d at 273 (citing Adams, 739 F.2d at 868; Lorenz v. CSX Corp.,

1 F.3d 1406, 1414 (3d Cir.1993)). Thus, our review of the question of

undue delay . . . will “focus on the movant's reasons for not amending

sooner,” Cureton, 252 F.3d at 273, and we will balance these reasons

against the burden of delay on the District Court. Coventry v. U.S. Steel

Corp., 856 F.2d 514, 520 (3d Cir.1988).

Bjorgung v. Whitetail Resort, LP, supra, 550 F.3d at 266.

Furthermore, “‘[a]mong the grounds that could justify a denial of leave to

amend are undue delay, bad faith, dilatory motive, prejudice, and futility.’ In re

Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1434 (3d Cir.1997)

(‘Burlington’); Lorenz v. CSX Corp., 1 F.3d 1406, 1413-14 (3d Cir.1993). ‘Futility’

means that the complaint, as amended, would fail to state a claim upon which relief

could be granted. Burlington, 114 F.3d at 1434.” Shane v. Fauver, 213 F.3d 113, 115

(3d Cir. 2000). Moreover, a party seeking to supplement pleadings must act in a

diligent fashion. Thus, for example, “[a] District Court has discretion to deny a

plaintiff leave to amend where the plaintiff was put on notice as to the deficiencies in

his complaint, but chose not to resolve them. Rolo v. City Investing Co. Liquidating

Trust, 155 F.3d 644, 654 (3d Cir.1998).” Krantz v. Prudential Investments Fund

Management LLC, 305 F.3d 140, 144 (3d Cir. 2002).

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Finally, in every instance, the exercise of this discretion must be guided by the

animating principle behind Rule 15, which is “to make pleadings a means to achieve

an orderly and fair administration of justice.” Griffin v. County School Bd. of Prince

Edward County, 377 U.S. 218, 227 (1964). Therefore, in considering a motion to

amend we must always “appl[y] Rule 15 . . . in a manner aimed at securing the just,

speedy and inexpensive determination of every action.” CMR D.N. Corp. v. City Of

Philadelphia, No. 07-1045, 2011 WL 857294, *4 (E.D.Pa. March 11,2011)(Stengel,

J.).

Since for purposes of assessing a motion to amend under Rule 15 “ ‘Futility’

means that the complaint, as amended, would fail to state a claim upon which relief

could be granted,” Shane v. Fauver, 213 F.3d 113, 115 (3d Cir. 2000), the standards

which govern a motion to amend mirror the language of Rule 12(b)(6) of the Federal

Rules of Civil Procedure, which provides that a complaint should be dismissed for

“failure to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6).

With respect to this benchmark standard for legal sufficiency of a complaint, the

United States Court of Appeals for the Third Circuit has aptly noted the evolving

standards governing pleading practice in federal court, stating that:

Standards of pleading have been in the forefront of jurisprudence in

recent years. Beginning with the Supreme Court's opinion in Bell

Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) continuing with our

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opinion in Phillips [v. County of Allegheny, 515 F.3d 224, 230 (3d Cir.

2008)] and culminating recently with the Supreme Court's decision in

Ashcroft v. Iqbal –U.S.–, 129 S.Ct. 1937 (2009) pleading standards have

seemingly shifted fromsimple notice pleading to a more heightened form

of pleading, requiring a plaintiff to plead more than the possibility of

relief to survive a motion to dismiss.

Fowler v. UPMC Shadyside, 578 F.3d 203, 209-10 (3d Cir. 2009).

In considering whether a complaint fails to state a claim upon which relief may

be granted, the court must accept as true all allegations in the complaint and all

reasonable inferencesthat can be drawn therefromare to be construed in the light most

favorable to the plaintiff. Jordan v. Fox Rothschild, O’Brien & Frankel, Inc., 20 F.3d

1250, 1261 (3d Cir. 1994). However, a court “need not credit a complaint’s bald

assertions or legal conclusions when deciding a motion to dismiss.” Morse v. Lower

Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997). Additionally a court need not

“assume that a ... plaintiff can prove facts that the ... plaintiff has not alleged.”

Associated Gen. Contractors of Cal. v. California State Council of Carpenters, 459

U.S. 519, 526 (1983). As the Supreme Court held in Bell Atlantic Corp. v. Twombly,

550 U.S. 544 (2007), in order to state a valid cause of action a plaintiff must provide

some factual grounds for relief which “requires more than labels and conclusions, and

a formulaic recitation of the elements of a cause of actions will not do.” Id. at 555. 

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“Factual allegations must be enough to raise a right to relief above the speculative

level.” Id. 

In keeping with the principles of Twombly, the Supreme Court has underscored

that a trial court must assess whether a complaint states facts upon which relief can be

granted when ruling on a motion to dismiss. In Ashcroft v. Iqbal, 556 U.S. 662

(2009), the Supreme Court held that, when considering a motion to dismiss,

“[t]hreadbare recitals of the elements of a cause of action, supported by mere

conclusory statements, do not suffice.” Id. at 678. Rather, in conducting a review of

the adequacy of complaint, the Supreme Court has advised trial courts that they must:

[B]egin by identifying pleadings that because they are no more than

conclusions are not entitled to the assumption of truth. While legal

conclusions can provide the framework of a complaint, they must be

supported by factual allegations. When there are well-pleaded factual 

allegations, a court should assume their veracity and then determine

whether they plausibly give rise to an entitlement to relief.

Id. at 679.

Thus, following Twombly and Iqbal a well-pleaded complaint must contain

more than mere legal labels and conclusions. Rather, a complaint must recite factual

allegations sufficient to raise the plaintiff’s claimed right to relief beyond the level of

mere speculation. As the United States Court of Appeals for the Third Circuit has

stated: 

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[A]fter Iqbal, when presented with a motion to dismiss for failure to state

a claim, district courts should conduct a two-part analysis. First, the

factual and legal elements of a claim should be separated. The District

Court must accept all of the complaint's well-pleaded facts as true, but

may disregard any legal conclusions. Second, a District Court must then

determine whether the facts alleged in the complaint are sufficient to

show that the plaintiff has a “plausible claim for relief.” In other words,

a complaint must do more than allege the plaintiff's entitlement to relief.

A complaint has to “show” such an entitlement with its facts. 

Fowler, 578 F.3d at 210-11.

As the court of appeals has observed: “The Supreme Court in Twombly set forth

the ‘plausibility’ standard for overcoming a motion to dismiss and refined this

approach in Iqbal. The plausibility standard requires the complaint to allege ‘enough

facts to state a claim to relief that is plausible on its face.’ Twombly, 550 U.S. at 570,

127 S.Ct. 1955. A complaint satisfies the plausibility standard when the factual

pleadings ‘allow[ ] the court to draw the reasonable inference that the defendant is

liable for the misconduct alleged.’ Iqbal, 129 S.Ct. at 1949 (citing Twombly, 550 U.S.

at 556, 127 S.Ct. 1955). This standard requiresshowing ‘more than a sheer possibility

that a defendant has acted unlawfully.’ Id. A complaint which pleads facts ‘merely

consistent with’ a defendant's liability, [ ] ‘stops short of the line between possibility

and plausibility of “entitlement of relief.” ’ ” Burtch v. Milberg Factors, Inc., 662 F.3d

212, 220-21 (3d Cir. 2011) cert. denied, 132 S. Ct. 1861, 182 L. Ed. 2d 644 (U.S.

2012).

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In practice, consideration of the legal sufficiency of a complaint entails a threestep analysis: “First, the court must ‘tak[e] note of the elements a plaintiff must plead

to state a claim.’ Iqbal, 129 S.Ct. at 1947. Second, the court should identify

allegations that, ‘because they are no more than conclusions, are not entitled to the

assumption of truth.’ Id. at 1950. Finally, ‘where there are well-pleaded factual

allegations, a court should assume their veracity and then determine whether they

plausibly give rise to an entitlement for relief.’ Id.” Santiago v. Warminster Tp., 629

F.3d 121, 130 (3d Cir. 2010).

In addition to these pleading rules, a civil complaint must comply with the

requirements of Rule 8(a) of the Federal Rule of Civil Procedure which defines what

a complaint should say and provides that:

(a) A pleading that states a claim for relief must contain (1) a short and

plain statement of the grounds for the court’s jurisdiction, unless the

court already has jurisdiction and the claim needs no new jurisdictional

support; (2) a short and plain statement of the claim showing that the

pleader is entitled to relief; and (3) a demand for the relief sought, which

may include relief in the alternative or different types of relief.

Thus, a well-pleaded complaint must contain more than mere legal labels and

conclusions. Rather, a pro se plaintiff’s complaint must recite factual allegations

which 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.

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Applying these legal benchmarks, for the reasons set forth below, we conclude

that this second amended complaint is fatally flawed with respect to the supervisory

defendants, Warden Smith and Nurse Larry and should, therefore, be dismissed as to

those defendants.

B. Lockett’s Supervisory Liability Claims AgainstWardenSmith

and Nurse Larry Fail as a Matter of Law

In this case Lockett names two prison supervisors, Warden Smith and Nurse

Larry, as defendants in his second amended complaint but has not alleged sufficient

facts to give rise to supervisory liability against these defendants. In considering

claims brought against supervisory officials arising out of alleged constitutional

violations, the courts recognize that prison supervisors may be exposed to liability

only in certain, narrowly defined, circumstances.

At the outset, it is clear that a claim of a constitutional deprivation cannot be

premised merely on the fact that the named defendant was a prison supervisor when

the incidents set forth in the complaint occurred. Quite the contrary, to state a

constitutional tort claim the plaintiff must show that the supervisory defendants

actively deprived him of a right secured by the Constitution. Morse v. Lower Merion

School Dist., 132 F.3d 902 (3d Cir. 1997); see also Maine v.Thiboutot, 448 U.S. 1

(1980). Constitutional tort liability is personal in nature and can only follow personal

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involvement in the alleged wrongful conduct shown through specific allegations of

personal direction or of actual knowledge and acquiescence in the challenged practice.

Robinson v. City of Pittsburgh, 120 F.3d 1286 (3d Cir. 1997).

In particular, with respect to prison supervisors it is well-established that:

“A[n individual government] defendant in a civil rights action must have

personal involvement in the alleged wrongdoing; liability cannot be

predicated solely on the operation of respondeat superior. Personal

involvement can be shown through allegations of personal direction or

of actual knowledge and acquiescence.” Rode v. Dellarciprete, 845 F.2d

1195, 1207 (3d Cir.1988).

Evancho v. Fisher, 423 F.3d 347, 353 (3d Cir. 2005).

As the Supreme Court has observed:

Government officials may not be held liable for the unconstitutional

conduct of their subordinates under a theory of respondeat superior. . .

. See Monell v. New York City Dept. of Social Servs., 436 U.S. 658,

691, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978) (finding no vicarious liability

for a municipal “person” under 42 U.S.C. § 1983); see also Dunlop v.

Munroe, 7 Cranch 242, 269, 3 L.Ed. 329 (1812) (a federal official's

liability “will only result from his own neglect in not properly

superintending the discharge” of his subordinates' duties); Robertson v.

Sichel, 127 U.S. 507, 515-516, 8 S.Ct. 1286, 3 L.Ed. 203 (1888) (“A

public officer or agent is not responsible for the misfeasances or position

wrongs, or for the nonfeasances, or negligences, or omissions of duty, of

the subagents orservants or other persons properly employed by or under

him, in the discharge of his official duties”). 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.

Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009).

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Applying these benchmarks, courts have frequently held that, in the absence of

evidence of supervisory knowledge and approval of subordinates’ actions, a plaintiff

may not maintain an action against supervisors based upon the misdeeds of their

subordinates. O’Connell v. Sobina, No. 06-238, 2008 WL 144199, * 21 (W.D. Pa.

Jan. 11, 2008); Neuburger v. Thompson, 305 F. Supp. 2d 521, 535 (W. D. Pa. 2004).

Rather, “[p]ersonal involvement must be alleged and is only present where the

supervisor directed the actions of supervisees or actually knew of the actions and

acquiesced in them. See Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir.1988).”

Jetter v. Beard, 183 F. App’x 178, 181 (3d Cir. 2006)(emphasis added).

At the outset, with respect to Nurse Larry, Lockett simply alleges that as a

supervisor Nurse Larry “is responsible for the Nurses to perform their duties.” (Doc.

21.) This allegation is nothing more than an assertion ofrespondeatsuperiorliability.

Since Government officials may not be held liable for the unconstitutional conduct of

their subordinates under a theory of respondeat superior” Ashcroft v. Iqbal, 556 U.S.

662, 676 (2009), this claim fails as a matter of law and should be dismissed. In fact,

in this case Lockett does little more than name these supervisory officials in the

caption of the case, and then seek to hold them personally liable based upon the

official’s supervisory status without making any specific factual allegations about

these defendants in the body of this pleading. To the extent that Lockett simply

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premises the liability of the defendants upon their supervisory status without setting

forth any further factual basis for a claim in the body of this pleading, this cursory

style of pleading is plainly inadequate to state a claim against a prison supervisor and

compels dismissal of these defendants. Hudson v. City of McKeesport, 244 F. App’x

519 (3d Cir. 2007) (affirming dismissal of defendant who was only named in caption

of case.)

Furthermore, to the extent that Lockett’s supervisory liability claims rest on the

premise that Warden Smith did not after-the-fact act favorably upon his past

grievances, this claim also fails. An inmate cannot sustain a constitutional tort claim

against prison supervisors based solely upon assertions that officials failed to

adequately investigate or respond to his past grievances. Inmates do not have a

constitutional right to a prison grievance system. Speight v. Sims, 283 F. App’x 880

(3d Cir. 2008) (citing Massey v. Helman, 259 F.3d 641, 647 (7th Cir. 2001) (“[T]he

existence of a prison grievance procedure confers no liberty interest on a prisoner.”). 

Consequently, dissatisfaction with a response to an inmate’s grievances does not

support a constitutional claim. See also Alexander v. Gennarini, 144 F. App’x 924 (3d

Cir. 2005) (involvement in post-incident grievance process not a basis for § 1983

liability); Pryor-El v. Kelly, 892 F. Supp. 261, 275 (D. D.C. 1995) (because prison

grievance procedure does not confer any substantive constitutional rights upon prison

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inmates, the prison officials’ failure to comply with grievance procedure is not

actionable). See also Cole v. Sobina, No. 04-99J, 2007 WL 4460617, at *5 (W.D. Pa.

Dec. 19, 2007) (“[M]ere concurrence in a prison administrative appeal process does

not implicate a constitutional concern.”). As the United States Court of Appeals for

the Third Circuit observed when disposing of a similar claim by another inmate:

Several named defendants, such as the Secretaries of the Department of

Corrections or Superintendents, were named only for their supervisory

roles in the prison system. The District Court properly dismissed these

defendants and any additional defendants who were sued based on their

failure to take corrective action when grievances or investigations were

referred to them. See Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d

Cir.1988) (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); see also Antonelli v. Sheahan,

81 F.3d 1422, 1430 (7th Cir.1996) (state's inmate grievance procedures

do not give rise to a liberty interest protected by the Due Process Clause).

Pressley v. Beard, 266 F. App’x 216, 218 (3d Cir. 2008).

Indeed, as to such claims, the United States Court of Appeals for the Third

Circuit has held that summary dismissal is appropriate “because there is no apparent

obligation for prison officials to investigate prison grievances. See Inmates of Attica

Corr. Facility v. Rockefeller, 477 F.2d 375, 382 (2d Cir.1973).” Paluch v. Sec'y

Pennsylvania Dept. Corr., 442 F. App'x 690, 695 (3d Cir. 2011).

In sum, as presently drafted, the plaintiff’s claims against Warden Smith and

Nurse Larry consist of little more than assertions of respondeat superior liability,

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coupled with dissatisfaction with the processing of this inmate’s past grievances,

assertions which as a matter of law do not suffice to state a constitutional tort claim.

Therefore, these defendants are entitled to be dismissed from this case.

III. Recommendation

Accordingly, for the foregoing reasons, IT IS RECOMMENDED that the

plaintiff’s motion to amend (Doc. 19.), be granted in part and denied in part as

follows: this motion to amend be granted in part, and the second amended complaint

(Doc. 21.) should be filed against defendants Lt. Delkar, Lt. Woods, Nurse Kimberley,

Nurse, Dawn, Nurse Michelle, and C.O. Luzier and served upon those defendants, but

defendants Warden Smith and Nurse Larry should be dismissed fromthis action, since

the second amended complaint fails to state a claim of supervisory liability upon

which relief may be granted.

The Parties are further placed on notice that pursuant to Local Rule 72.3:

Any party may object to a magistrate judge's proposed findings, 

recommendations orreport 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

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recommendations to which objection is made and may accept, reject, or

modify, in whole orin part, the findings orrecommendations 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.

Submitted this 13th day of January 2016.

S/Martin C. Carlson 

Martin C. Carlson

 United States Magistrate Judge

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