1

 Plaintiff originally named other Defendants who have previously been dismissed from

this action. See Documents ## 46 and 56. 

1

IN THE UNITED STATES DISTRICT COURT 

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

SHAN CHILCOTT, )

Plaintiff )

)

vs. ) C.A.No. 05-225 Erie

) District Judge Cohill

DOMESTIC RELATIONS SECTION, et al. ) Magistrate Judge Baxter

Defendants. )

MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION 

I RECOMMENDATION

It is respectfully recommended that the motions to dismiss filed by Defendant Erie

County Prison [Document # 51 and 53] be granted and the motion to dismiss filed by

Defendants Root and Goring [Document # 58] be denied.

II REPORT

A. Procedural History

Plaintiff, Shan Chilcott, formerly detained at the Erie County Prison, in Erie,

Pennsylvania, filed this civil rights action. Plaintiff names the Erie County Prison, as well as

correctional officers Root and Goring, as Defendants1 and alleges that these Defendants have

violated his Fourth, Fifth, Sixth, Seventh, Eighth and Fourteenth Amendment rights. More

specifically, in his original complaint, Plaintiff alleges, in pertinent part:

“3) Erie County Prison is refusing to provide me with medical attention.

4) On May 22, 2005, Sandy Kennedy informed me that her brother the gaurd

[sic] at Erie County Prison was going to teach me for messing with their

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2

 Dennis Coan has not been named as a defendant in this action in either the original or

the amended complaints.

3

 Officer Root’s sister, Dawn Marie Root, is the mother of Plaintiff’s child.

4

 Since the filing of this lawsuit, Plaintiff has been released from the Erie County Prison 

and therefore, his requests for injunctive relief have become moot.

2

family. On May 23, 2005, Dennis Coan pre-release supervisor did assalt

[sic] and threaten me and aprove [sic] returning to Erie County Prison to

the RHU unit under the direct care of Cliff Root, Sandy Kennedy’s

brother. A campain [sic] of harassment has been going on since that day

of May 23, 2005 till present.”

Document # 3, page 2. And, in his amended complaint, Plaintiff alleges:

Erie County Prison Officer Root, Corporal Goring there was a campain [sic] of

harrasment [sic] from 4-1-05 to 10-24-05. I’ll list major incedents [sic]: May 23

Dennis Coan2 assulted [sic] and threated [sic] me. July 3 Officer Root threatened

me and tryed [sic] to get me to sing [sic] my parenting rights to his sister3. On

Sept 6 Officer Root and Corparel Goring with threats and coerction had me sing

[sic] a deed over to Officer Roots sister and his brother-in-law.

Document # 40, page 2. Plaintiff further contends that he was repeatedly denied grievance

forms by both an unnamed counselor and Defendant Goring. Plaintiff seeks injunctive relief4 in

order to obtain medical treatment and the end of the harassment (Document # 3), as well as

“monetary and punitive relief” (Document # 40).

Defendants Erie County Prison, Root and Goring have filed motions to dismiss. Despite

being given the opportunity to do so, Plaintiff has not responded to the pending motions. The

issues are ripe for disposition by this Court.

B. Standards of Review

1. Pro Se Pleadings

Pro se pleadings, “however inartfully pleaded,” must be held to “less stringent standards

than formal pleadings drafted by lawyers” and can only be dismissed for failure to state a claim

if it appears “<beyond a doubt that the plaintiff can prove no set of facts in support of his claim

which would entitle him to relief.’” Haines v. Kerner, 404 U.S. 519, 520-521(1972), quoting

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Conley v. Gibson, 355 U.S. 41, 45-46 (1957). If the court can reasonably read pleadings to state

a valid claim on which the litigant could prevail, it should do so despite failure to cite proper

legal authority, confusion of legal theories, poor syntax and sentence construction, or litigant’s

unfamiliarity with pleading requirements. Boag v. MacDougall, 454 U.S. 364 (1982); United

 States ex rel. Montgomery v. Bierley, 141 F.2d 552, 555 (3d Cir. 1969)(petition prepared by a

prisoner may be inartfully drawn and should be read “with a measure of tolerance”); Smith v.

U.S. District Court, 956 F.2d 295 (D.C.Cir. 1992); Freeman v. Department of Corrections, 949

F.2d 360 (10th Cir. 1991). Under our liberal pleading rules, during the initial stages of

litigation, a district court should construe all allegations in a complaint in favor of the

complainant. Gibbs v. Roman, 116 F.3d 83 (3d Cir. 1997). See, e.g., Nami v. Fauver, 82 F.3d

63, 65 (3d Cir. 1996)(discussing Fed.R.Civ.P. 12(b)(6) standard); Markowitz v. Northeast Land

Company, 906 F.2d 100, 103 (3d Cir. 1990)(same). Because Plaintiff is a pro se litigant, this

Court will consider facts and make inferences where it is appropriate. 

2. Motion to dismiss 

A motion to dismiss filed pursuant to Federal Rule of Civil Procedure 12(b)(6) must be

viewed in the light most favorable to the plaintiff and all the well-pleaded allegations of the

complaint must be accepted as true. Neitzke v. Williams, 490 U.S. 319 (1989); Estelle v.

Gamble, 429 U.S. 97 (1976). The motion cannot be granted unless the court is satisfied “that no

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

allegations.” Hishon v. King & Spaulding, 467 U.S. 69, 73 (1984). The issue is not whether the

plaintiff will prevail at the end but only whether he should be entitled to offer evidence to

support his claim. Neitzke; Scheuer v. Rhodes, 419 U.S. 232 (1974). Rule 8(a) of the Federal

Rules of Civil Procedure states that a pleading must set forth a claim for relief which contains a

short and plain statement of the claim showing that the pleader is entitled to relief. Therefore, in

order to survive a motion to dismiss for failure to state a claim, the complaint must set forth

sufficient information to suggest that there is some recognized legal theory upon which relief

can be granted.

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3. Motion for summary judgment

Defendants Goring and Root have submitted affidavits in support of their motion to

dismiss. Therefore, this Court will convert the motion to dismiss pursuant to Federal Rule of

Civil Procedure 12(b)(6) to a motion for summary judgment pursuant to Federal Rule of Civil

Procedure 56. See Burns v. Harris County Bail Bond Bd., 139 F.3d 513, 517 (5th Cir.1998).

("When matters outside the pleadings are presented to and not excluded by the district court, the

district court must convert a motion to dismiss into a motion for summary judgment."); Greer v.

Smith, 2003 WL 1090708, *1 (3d Cir. (Pa.) March 10, 2003) (“the District Court considered

material outside of the pleadings and, therefore, should have converted the motion for dismissal

to a summary judgment motion, allowing the plaintiff an opportunity for appropriate discovery

and a reasonable opportunity to present all material made pertinent to the motion.”).

Federal Rule of Civil Procedure 56(c) provides that summary judgment shall be granted

if the “pleadings, depositions, answers to interrogatories, and admissions on file, together with

the affidavits, if any, show that there is no genuine issue as to any material fact and that the

moving party is entitled to judgment as a matter of law.” Rule 56(e) further provides that when

a motion for summary judgment is made and supported, “an adverse party may not rest upon the

mere allegations or denials of the adverse party’s pleading, but the adverse party’s response, by

affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is

a genuine issue for trial. If the adverse party does not so respond, summary judgment, if

appropriate, shall be entered against the adverse party.” Id. 

A district court may grant summary judgment for the defendant when the plaintiff has

failed to present any genuine issues of material fact. See Fed.R.Civ.P. 56(c); Krouse v.

American Sterilizer Co., 126 F.3d 494, 500 n.2 (3d Cir. 1997). The moving party has the initial

burden of proving to the district court the absence of evidence supporting the non-moving

party’s claims. Celotex Corp. v. Catrett, 477 U.S. 317 (1986); Country Floors, Inc. v.

Partnership Composed of Gepner and Ford, 930 F.2d 1056, 1061 (3d Cir. 1990). Further,

“[R]ule 56 enables a party contending that there is no genuine dispute as to a specific, essential

fact <to demand at least one sworn averment of that fact before the lengthy process of litigation

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continues.’” Schoch v. First Fidelity Bancorporation, 912 F.2d 654, 657 (3d Cir. 1990) quoting

Lujan v. National Wildlife Federation, 497 U.S. 871 (1990). 

The burden then shifts to the non-movant to come forward with specific facts showing a

genuine issue for trial. Matsushita Elec. Indus. Co. v Zenith Radio Corp., 475 U.S. 574 (1986);

Williams v. Borough of West Chester, Pa., 891 F.2d 458, 460-461 (3d Cir. 1989)(the nonmovant must present affirmative evidence - more than a scintilla but less than a preponderance -

which supports each element of his claim to defeat a properly presented motion for summary

judgment). The non-moving party must go beyond the pleadings and show specific facts by

affidavit or by information contained in the filed documents (i.e., depositions, answers to

interrogatories and admissions) to meet his burden of proving elements essential to his claim. 

Celotex, 477 U.S. at 322; Country Floors, 930 F.2d at 1061.

A material fact is a fact whose resolution will affect the outcome of the case under

applicable law. Anderson v. Liberty Lobby, Inc. 477 U.S. 242, 248 (1986). Although the court

must resolve any doubts as to the existence of genuine issues of fact against the party moving for

summary judgment, Rule 56 “does not allow a party resisting the motion to rely merely upon

bare assertions, conclusory allegation or suspicions.” Firemen’s Ins. Co. of Newark, N.J. v.

DuFresne, 676 F.2d 965, 969 (3d Cir. 1982). Summary judgment is only precluded if the

dispute about a material fact is “genuine,” i.e., if the evidence is such that a reasonable jury

could return a verdict for the non-moving party. Anderson, 477 U.S. at 247-249. 

C. Defendant Erie County Prison

Defendant Erie County Prison moves to dismiss on the basis on sovereign immunity. 

In order to establish liability under § 1983, plaintiff must show that: (1) he was deprived

of rights secured by United States Constitution or laws of United States, and (2) he was

subjected or caused to be subjected to constitutional deprivation by person acting under color of

state law. 42 U.S.C.A. § 1983. 

Plaintiff seeks damages from the Erie County Prison. The Eleventh Amendment

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proscribes actions in the federal courts against states, their agencies, and state officials acting

within their official capacities. Laskaris v. Thornburgh, 661 F.2d 23 (3d Cir. 1981)

(Pennsylvania); Mt. Healthy City Board of Education v. Doyle, 429 U.S. 274 (1977) (state

agencies); Edelman v. Jordan, 415 U.S. 651 (1974) (state employees acting in their official

capacity). The only ways that a state may be sued in federal court are if (1) the state has waived

its Eleventh Amendment immunity (Kentucky v. Graham, 473 U.S. 159 (1985)), or (2) Congress

has made it unmistakably clear in either the language of a statute or in its legislative history that

it is its intention to permit such suits (Board of Trustees of the University of Alabama v. Garrett,

531 U.S. 356 (2001)). Thus, unless Erie County Prison has consented to suit here or the

Congress has expressly abrogated this institution's Eleventh Amendment immunity, neither of

which has occurred, this case should be dismissed against the prison. 

In addition, entities acting under color of state law cannot be held liable under 42 U.S.C.

§ 1983 on a respondeat superior theory. Monell v. Department of Social Services, 436 U.S. 658

(1978) (superiors of line officers who act in violation of constitutional rights may not be held

liable on a theory of vicarious liability merely because the superior had a right to control the line

officer’s action); Robinson v. City of Pittsburgh, 120 F.3d 1286, 1293-1295 (3d Cir. 1997) (to

hold police chief liable under § 1983 for violating female subordinate officer’s rights, she was

required to prove that he personally participated in violating the her rights, that he directed

others to violate her rights, or that he had knowledge of and acquiesced in his subordinates’

violations). To state a viable claim under section 1983 against Erie County Prison, Plaintiff

must allege that he was injured as the result of a “policy or custom” of this entity-defendant. 

Monell, 436 U.S. 691. A “[p]olicy is made when a ‘decisionmaker possess[ing] final authority

to establish municipal policy with respect to the action’ issues an official proclamation, policy or

edict.” Andrews v. City of Philadelphia, 895 F.2d 1469, 1480 (3d Cir. 1990). A custom “can

be proven by showing that a given course of conduct, although not specifically endorsed or

authorized by law, is so well-settled and permanent as virtually to constitute law.” Bielevicz v.

Dubinon, 915 F.2d 845, 850 (3d Cir. 1990). Plaintiffs’ complaint contains no allegations that a

custom or policy of the prison led to any claimed injuries. The prison is named as defendant

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simply as the entity-in-charge and thus, Plaintiff’s complaint fails to state a claim upon which

relief may be granted. 

Therefore, Defendant Erie County Prison should be dismissed from this action.

D. Defendants Goring and Root

Defendants Goring and Root argue that this case should be dismissed because Plaintiff

has suffered “no loss of a constitutionally protected right.” Defendants make much of the fact

that despite the harassment by Defendants and other prison personnel, Plaintiff’s property rights

were reinstated after thirty days and Plaintiff’s parental rights always remained intact. 

However, Defendants miss the point. Plaintiff alleges that he suffered a continuous and

on-going pattern of harassment at the hands of Defendants from April through October of 2005

and that Defendants harassed and coerced him into terminating his property rights. The issue is

not whether Plaintiff’s property rights were revived after a short period of time or whether his

parental rights remained intact. Instead, the issue is whether Plaintiff should have been

subjected to this type of harassment and coercion for seven months at the hands of his jailors. 

See generally Boxer X v. Harris, ___ F.3d ___, ___, 2006 WL 2271270, at * 2 (11th Cir. August

9, 2006) (“A prisoner asserting an Eighth Amendment claim must demonstrate that the prison

guard ‘acted with a sufficiently culpable state of mind,’ Wilson v. Seiter, 501 U.S. 294, 297

(1991), and that ‘the alleged wrongdoing was objectively harmful enough to establish a

constitutional violation.’ Hudson v. McMillian, 503 U.S. 1, 8 (1992).”).

Accordingly, the motion to dismiss or for summary judgment filed by Defendants Goring

and Root should be denied.

III CONCLUSION

For the foregoing reasons, it is respectfully recommended that the motions to dismiss

filed by Defendant Erie County Prison [Document # 51 and 53] be granted and the motion to

dismiss filed by Defendants Root and Goring [Document # 58] be denied.

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In accordance with the Magistrates Act, 28 U.S.C. § 636(b)(1)(B) and (C), and Local

Rule 72.1.4B, the parties are allowed ten (10) days from the date of service to file written

objections to this report. Any party opposing the objections shall have seven (7) days from the

date of service of objections to respond thereto. Failure to timely file objections may constitute

a waiver of any appellate rights.

S/ Susan Paradise Baxter 

SUSAN PARADISE BAXTER

Chief United States Magistrate Judge

Dated: September 25 , 2006

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