UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

KEVIN POWELL, : CIVIL NO. 4:05-CV-0955

:

Plaintiff : (Judge McClure)

:

v. : (Magistrate Judge Smyser)

:

JEFFREY BEARD; :

FRANKLIN J. TENNIS; :

MARGARET MILLER; and :

MARY JO HAYS, :

:

Defendants :

REPORT AND RECOMMENDATION

The plaintiff, a state prisoner, filed a 42 U.S.C. §

1983 complaint on May 10, 2005. He has named as defendants

Jeffrey Beard, the Secretary of Corrections for the

Commonwealth of Pennsylvania, Franklin J. Tennis, the

Superintendent of the state Correctional Institution at

Rockview, and Margaret Miller and Mary Jo Hays, a registered

nurse and another employee of the medical department at SCI

Rockview. 

The four defendants filed a motion to dismiss the

complaint on August 4, 2005 and a brief in support of the

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motion to dismiss on August 12, 2005. A brief in opposition

to the motion to dismiss the complaint was filed by the

plaintiff on October 7, 2005. (Additional time had been

granted to the plaintiff by Order of September 23, 2005.) No

reply brief has been filed.

The basis upon which the defendants assert that the

complaint should be dismissed is that the complaint does not

sufficiently allege the personal involvement of the

defendants in the occurrences that are the subject matter of

the complaint.

 A motion to dismiss pursuant to Rule 12(b)(6) challenges

the legal sufficiency of the plaintiff's complaint; the court

must decide whether, even if the plaintiff were able to prove

all of his allegations, he would be unable to prevail. 

Mortensen v. First Fed. Sav. & Loan Ass'n, 549 F.2d 884, 891

(3d Cir. 1977). In a Rule 12(b)(6) motion to dismiss for

failure to state a claim upon which relief can be granted,

the burden is on the moving party to show that there is no

actionable claim. Johnsrud v. Carter, 620 F.2d 29, 33 (3d

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Cir. 1980). When deciding a motion to dismiss, the court

must accept all material allegations of the complaint as true

and draw all inferences in the light most favorable to the

plaintiff. Pennsylvania House, Inc. v. Barrett, 760 F. Supp.

439, 449 (M.D. Pa. 1991). However, "conclusory allegations

of law, unsupported conclusions and unwarranted inferences

need not be accepted as true." Id. at 449-50. A complaint

should not be dismissed for failure to state a claim upon

which relief can be granted unless it appears beyond doubt

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, 44-46 (1957); Ransom v. Marrazzo, 848

F.2d 398, 401 (3d Cir. 1988).

“Liability may not be imposed under § 1983 on the

principle of respondeat superior.” Hetzel v. Swartz, 909

F.Supp. 261, 264 (M.D. Pa. 1995). Liability under 42 U.S.C.

§ 1983 may only be based upon a defendant's personal

involvement in conduct amounting to a constitutional

violation. Hampton v. Holmesburg Prison Officials, 546 F.2d

1077, 1082 (3d Cir. 1976). The complaint must contain

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averments of the involvement of the defendants in the conduct

which caused a violation of the plaintiff's constitutional

rights. Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir.

1988). A 42 U.S.C. §1983 action against state supervisory

officials requires allegations that the defendants actually

participated in or had actual knowledge of and acquiesced in

the events forming the basis of the claims. Egan v. Concini,

585 F. Supp. 801, 804 (M.D. Pa. 1984). 

 The plaintiff alleges that he was denied needed medical

care and that the reason for the denial to him of needed

medical care was that he had brought a civil action complaint

in state court against a member of the institution’s medical

department, an associate of defendants Miller and Hays. 

The pro se complaint is reasonably construed as stating

claims that the plaintiff’s First Amendment right of access

to the courts was violated in that state prison officers and

employees withheld amenities or necessities from him in

retaliation against him for having pursued litigation against

prison personnel in courts and that the plaintiff’s Eighth

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Amendment right to be free from cruel and unusual punishment

was violated in that prison personnel were deliberately

indifferent to serious medical needs.

The defendants contend that the complaint should be

dismissed because it does not state with adequate detail the

personal involvement of each defendant in the violation of

the plaintiff’s right of access to the courts or right to

have a serious medical condition afforded a level of care

greater than deliberate indifference. 

The complaint does clearly state that the claims as to

defendants Beard and Tennis is based upon their supervisory

roles and Tennis’ role in the grievance process. Although

respondeat superior, or in other words the defendant’s

supervisory relationship to the alleged perpetrator of the

constitutional tort, is generally not a basis for stating a

cause of action under 42 U.S.C. § 1983, the relief sought in

this complaint is inter alia injunctive equitable relief

against defendants Beard and Tennis as to the plaintiff’s

future medical treatment. The defendants have not addressed

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the issue of the prayer for injunctive relief in their motion

to dismiss or the issue whether the presence of defendant

Beard or defendant Tennis as a defendant would be necessary

to assure the accomplishment of the injunctive mandate if the

court were to grant the requested injunctive relief. It will

be recommended that the motion to dismiss the complaint be

denied as to defendants Beard and Tennis for the reason that

the injunctive relief sought by the plaintiff may give rise

to a potential personal involvement of these defendants in

affording the future medical care for the plaintiff to which

he contends that he is entitled. 

The personal involvement of defendants Miller and Hays

in the events that are the subject of the plaintiff’s

averments in the complaint is adequately stated in the

complaint. The complaint avers that on January 31, 2005

defendant Miller, a prison nurse, forced the plaintiff to

take the wrong medicine causing health problems for the

plaintiff, that defendant Miller then would not let the

plaintiff see the prison doctor, and that the motivation for

defendant Miller to act as she did was to retaliate against

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the plaintiff in that the plaintiff had sued Nurse Myers, a

friend of defendant Miller. The complaint also alleges that

defendant Hays, also a prison nurse, also refused to let the

plaintiff see a prison doctor, also for the same retaliatory

reason. Construing these allegations in the complaint in the

light most favorable to the plaintiff, the complaint clearly

states claims upon which relief can be granted and does not

fail to provide an adequate statement of the factual basis

for the claims stated therein. 

It is recommended that the defendants’ motion to

dismiss the complaint be denied. 

/s/ J. Andrew Smyser

 J. Andrew Smyser

 Magistrate Judge 

Dated: November 21, 2005. 

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