IN THE UNITED STATES DISTRICT COURT 

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA 

 

DANA ELROY SMITH, et al., : Civ. No. 4:22-CV-1396 

 : 

 Plaintiffs, : 

 : (Judge Munley) 

v. : 

 : (Magistrate Judge Bloom) 

JOHN D. DECKER, et al., : 

 : 

Defendants. : 

 

REPORT AND RECOMMENDATION 

 

I. Statement of Facts and of the Case 

This case comes before this Court for consideration of a motion to 

dismiss filed by one of the defendants, Mark Rockovich.1 (Doc. 60). The 

plaintiffs, Dana Smith and William Matthews, brought this action 

against Rockovich and a host of other defendants arising out of their 2019 

state criminal prosecution for solicitation to commit criminal homicide 

and criminal conspiracy, charges that were ultimately dismissed. (Doc. 

1 We note that this motion also includes C.O. Wilk, who appears to have 

been terminated as a defendant on the docket in this case. In fact, it 

appears that Wilk was not named in the caption or as a named defendant 

listed within the amended complaint, and he appears in only one 

paragraph of the amended complaint. (Doc. 51 ¶ 46). Out of an abundance 

of caution, we will address Plaintiff Smith’s claim against Wilk in this 

Report and Recommendation. 

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51). As it relates to Defendant Rockovich, who was the warden of the 

Luzerne County Correctional Facility at the time Smith was incarcerated 

there, the amended complaint asserts that Rockovich is responsible for 

the harassment and assault that Smith allegedly endured while housed 

at LCCF.2 (Doc. 51 ¶¶ 44-45). 

The amended complaint alleges that Smith and Matthews were 

charged by a criminal complaint on or around December 30, 2019, with 

solicitation to commit criminal homicide and criminal conspiracy. (Doc. 

51 ¶ 13). These charges were brought by the Pennsylvania State Police 

(“PSP”) through Defendants Decker, Williams, and Norton. (Id. ¶ 14). 

During the pendency of these state criminal proceedings, which were 

continued for nine and a half months, Smith was held at LCCF without 

bail. (Id. ¶¶ 16-17). 

Smith alleges that while he was incarcerated at LCCF, he was 

“assaulted, threatened to be assaulted, and generally mistreated by other 

inmates and guards” due to Wilk’s “harassing actions and remarks 

against Plaintiff Smith.” (Doc. 51 ¶ 46). He further alleges that as the 

2 The claims against Rockovich and Wilk only appear to relate to Plaintiff 

Smith, as there are no allegations that Plaintiff Matthews was ever 

incarcerated at LCCF. 

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warden, Defendant Rockovich is liable for the actions of his employees 

and the conduct of his guards. (Id. ¶ 45). 

Defendant Rockovich has now filed the instant motion to dismiss 

(Doc. 60), arguing that Smith’s claims fail as a matter of law.3 This 

motion is fully briefed and ripe for resolution. For the following reasons, 

we recommend that the defendant’s motion to dismiss be granted. 

II. Discussion

 

A. Motion to Dismiss – Standard of Review 

The defendant has filed a motion to dismiss the complaint pursuant 

to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Rule 12(b)(6) 

permits the court to dismiss a complaint if the complaint fails to state a 

claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). Under 

federal pleading standards, a complaint must set forth a “short and plain 

statement of the claim showing that the pleader is entitled to relief.” Fed. 

R. Civ. P. 8(a)(2). 

In determining whether a complaint states a claim for relief under 

this pleading standard, a court must accept the factual allegations in the 

3 The other remaining defendants have also filed motions to dismiss, 

which we will address separately. (Docs. 61, 64, 86). 

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complaint as true, Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 

(2007), and accept “all reasonable inferences that can be drawn from 

them after construing them in the light most favorable to the nonmovant.” Jordan v. Fox, Rothschild, O’Brien & Frankel, 20 F.3d 1250, 

1261 (3d Cir. 1994). However, a court is not required to accept legal 

conclusions or “a formulaic recitation of the elements of a cause of action.” 

Id.; see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“Threadbare 

recitals of the elements of a cause of action, supported by mere conclusory 

statements, do not suffice”). 

As the Third Circuit Court of Appeals has aptly summarized: 

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

failure to state a claim, district courts should conduct a twopart 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. Id. 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.” Id. at 1950. 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. See Phillips, 

515 F.3d at 234–35. As the Supreme Court instructed in Iqbal, 

“[w]here the well-pleaded facts do not permit the court to infer 

more than the mere possibility of misconduct, the complaint 

has alleged—but it has not ‘show[n]’—‘that the pleader is 

entitled to relief.’ ” Iqbal, 129 S. Ct. at 1949. This “plausibility” 

determination will be “a context-specific task that requires 

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the reviewing court to draw on its judicial experience and 

common sense.” Id. 

Fowler v. UPMC Shadyside, 578 F.3d 203, 210-11 (3d Cir. 2009). 

 Generally, when considering a motion to dismiss, a court relies on 

the complaint and its attached exhibits, as well as matters of public 

record. Sands v. McCormick, 502 F.3d 263, 268 (3d Cir. 2007). A court 

can also consider “undisputedly authentic document[s] that a defendant 

attached as an exhibit to a motion to dismiss if the plaintiff’s claims are 

based on the [attached] documents.” Pension Benefit Guar. Corp. v. 

White Consol. Indus., 998 F.2d 1192, 1196 (3d Cir. 1993). Additionally, if 

the complaint relies on the contents of a document not physically 

attached to the complaint but whose authenticity is not in dispute, the 

court may consider such document in its determination. See Pryor v. 

Nat’l Collegiate Athletic Ass’n, 288 F.3d 548, 560 (3d Cir. 2002). 

However, the court may not rely on any other part of the record when 

deciding a motion to dismiss. Jordan, 20 F.3d at 1261. 

B. The Motion to Dismiss should be Granted. 

As we have explained, Smith asserts his claims against Rockovich 

arising out of his detention at LCCF while his state criminal proceedings 

were pending. He alleges that Rockovich, as warden of LCCF, is 

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responsible for the harassment and assault he endured at LCCF at the 

hands of other inmates and guards. Smith also vaguely asserts that C.O. 

Wilk was one of the guards who harassed him. He brings his claims 

pursuant to 42 U.S.C. § 1983, alleging violations of his constitutional 

rights. After consideration, we conclude that these claims fail as a matter 

of law and should be dismissed. 

Smith’s claims appear to assert violations of the Eighth 

Amendment’s, which protects inmates from “cruel and unusual 

punishment.” U.S. Const. amend. XIII. Prison officials have a duty to 

provide inmates with “adequate food, clothing, shelter, and medical care, 

and must ‘take reasonable measures to guarantee the safety of the 

inmates.’” Farmer v. Brennan, 511 U.S. 825, 832 (1994) (quoting Hudson 

v. Palmer, 468 U.S. 517, 526-27 (1984)). To be liable for an Eighth 

Amendment violation, prison officials must have “a sufficiently culpable 

state of mind,” Farmer, 511 U.S. at 834, which, in the prison context, is 

one of “‘deliberate indifference’ to inmate health and safety.” BeersCapitol v. Whetzel, 256 F.3d 120, 125 (3d Cir. 2001) (citation omitted). 

Smith’s claims against Rockovich are based on a theory of 

supervisory liability; that is, because Rockovich was the warden of LCCF, 

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he is responsible for the actions of the guards that allegedly led to 

Rockovich’s injuries. First, and fundamentally, a plaintiff may not bring 

a § 1983 claim based solely on the theory of respondeat superior; rather, 

he must allege the defendant’s personal involvement in the alleged 

constitutional violations. Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d 

Cir. 1988). Second, to state a claim for supervisory liability in this 

context, Smith must allege that Rockovich’s conduct was either the 

“moving force [behind] the constitutional violation” or amounted to 

“deliberate indifference to the plight of the person deprived.” Sample v. 

Diecks, 885 F.2d 1099, 1118 (3d Cir. 1989). 

In this case, the amended complaint fails to assert allegations 

against Rockovich that amount to Eighth Amendment liability. Instead, 

the amended complaint generally asserts that Rockovich was the warden 

of the facility, and as the warden, he is responsible for the conduct of his 

employees. While the plaintiffs’ brief in opposition to the motion to 

dismiss asserts that he is proceeding under a theory of failure-to-train, 

there are no allegations in the complaint from which we could infer that 

Rockovich failed to properly train his employees such that a lack of 

training amounted to an Eighth Amendment violation. “To demonstrate 

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deliberate indifference where a plaintiff claims failure to train or 

supervise, the plaintiff must ordinarily show a ‘pattern of similar 

constitutional violations by untrained employees.’” See Thomas v. 

Cumberland County, 749 F.3d 217, 223 (3d Cir. 2014) (quoting Connick 

v. Thompson, 563 U.S. 51, 62 (2011)). Here, the amended complaint 

makes so such allegations. Accordingly, we conclude that Smith’s claims 

against Rockovich fail as a matter of law. 

Further, and acting out of an abundance of caution, we note that 

the complaint appears to assert an Eighth Amendment claim against 

C.O. Wilk, alleging that Wilk made harassing statements to Smith. (Doc. 

51 ¶ 46). However, it is well settled that “verbal harassment of a prisoner, 

although deplorable, does not violate the Eighth Amendment.” Robinson 

v. Taylor, 204 F. App’x 155, 156 (3d Cir. 2006) (citations omitted). Thus, 

to the extent that Wilk remains a defendant in this case, the Eighth 

Amendment claim fails as a matter of law and should be dismissed.4

III. Recommendation 

4 Because we have concluded that Smith’s claims against these 

defendants fail on their merits, we decline to address the defendants’ 

argument concerning qualified immunity. 

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 For the foregoing reasons, IT IS RECOMMENDED THAT the 

defendant’s motion to dismiss the amended complaint (Doc. 60) 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 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. 

Submitted this 17th day of January 2024. 

 s/ Daryl F. Bloom 

Daryl F. Bloom 

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United States Magistrate Judge 

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