Donald Parkell v. Jack Markell , 622 F. App'x 136 ( 2015 )


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  •                                                                NOT PRECEDENTIAL
    UNITED STATES COURT OF APPEALS
    FOR THE THIRD CIRCUIT
    ___________
    No. 14-3989
    ___________
    DONALD D. PARKELL,
    Appellant
    v.
    JACK A. MARKELL, Governor of Delaware, in his official and individual capacities;
    ATTORNEY GENERAL BEAU BIDEN, For Delaware, in his official and individual
    capacities; ROBERT COUPE, Commissioner of the Delaware Department of
    Corrections, in his official and individual capacities; PHILLIP MORGAN, Warden of the
    Howard R. Young Correctional Institution, in his official and individual capacities;
    MARY MATTHEWS, Lieutenant at Howard R. Young Correctional Institution, in her
    official and individual capacities
    ____________________________________
    On Appeal from the United States District Court
    for the District of Delaware
    (D.C. Civil Action No. 1-14-cv-00601)
    District Judge: Honorable Sue L. Robinson
    ____________________________________
    Submitted Pursuant to Third Circuit LAR 34.1(a)
    July 6, 2015
    Before: GREENAWAY, JR., SCIRICA, and RENDELL, Circuit Judges
    (Opinion filed: July 27, 2015)
    ___________
    OPINION*
    ___________
    *
    This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
    constitute binding precedent.
    PER CURIAM
    Appellant Donald Parkell, pro se and in forma pauperis, appeals from an order of
    the District Court dismissing his complaint pursuant to 28 U.S.C. § 1915(e)(2)(B)(i). For
    the following reasons, we will affirm in part and vacate in part the District Court’s
    judgment and remand this case for further proceedings consistent with this opinion.
    Parkell is a Delaware state prisoner. In May 2014, he sued Appellees—Delaware
    Governor Jack Markell, former Attorney General Beau Biden, Department of Corrections
    Commissioner Robert Coupe, Howard R. Young Correctional Institution (“HRYCI”)
    Warden Phillip Morgan, and Mary Matthews, an HRYCI officer who allegedly
    supervised the office of prisoner grievances—for injunctive, declaratory, and monetary
    relief under 42 U.S.C. § 1983 for allegedly violating his Eighth and Fourteenth
    Amendment rights.
    According to Parkell’s complaint, he was held in west-side housing at HRYCI for
    about two years. The west side at HRYCI was overcrowded, housing three men per cell
    designed for one. HRYCI allegedly provided the prisoners with: fewer servings of food
    and razors than prisoners; insufficient telephones and shower stalls; insufficient
    underclothing which the prisoners could not self-launder, leading to its theft when placed
    in the single, communal laundry tub; and only a small, indoor concrete enclosure where
    all 59 men per unit had to exercise simultaneously if they wished to exercise at all.
    According to Parkell, HRYCI punished its most violent and transgressive inmates
    by assignment to the west side, which also housed pretrial detainees and nonviolent
    2
    offenders. Inmates there were housed together regardless of status, without any risk
    assessment. The more aggressive individuals and gangs used force and intimidation to
    seize the limited resources at the expense of weaker and older inmates. Correctional
    officers did not personally participate in and could not observe the distribution of
    resources. Emergency alerts requiring guard intervention frequently occurred.
    Parkell was injured in October 2013 shortly after he allegedly spoke up in defense
    of the weaker prisoners to gang members in his unit and also complained of conditions to
    some correctional “lieutenants.” When he attempted to fairly distribute juice portions at
    one mealtime, multiple prisoners attacked and beat him for approximately five minutes.
    He sustained head wounds, broken ribs, and two collapsed lungs. Parkell was treated at
    Christiana Hospital, where medical professionals prescribed oxycodone to combat his
    pain during his recuperation. HRYCI, however, refused to provide that medication under
    a policy forbidding medicinal use of narcotics. The prison provided Parkell instead with
    Tylenol containing codeine at less frequent intervals, and then discontinued that treatment
    after a few days in favor of an anti-psychotic/anti-depressant drug. As a result, Parkell
    claimed, he suffered intense pain for more than two weeks.
    In his complaint, Parkell appeared to advance Eighth and Fourteenth Amendment
    claims based on his treatment as a pretrial detainee and then a convicted inmate. The
    District Court dismissed Parkell’s complaint with prejudice upon screening it under
    § 1915(e)(2)(B), holding that some of Parkell’s claims duplicated those the court had
    already dismissed in another of his suits, see Parkell v. Morgan, 
    917 F. Supp. 2d 328
    (D.
    
    3 Del. 2013
    ), and that the remainder were frivolous. See 28 U.S.C. § 1915(e)(2)(B)(i).
    Parkell timely appealed.1
    We have jurisdiction under 28 U.S.C. § 1291 and exercise plenary review of the
    District Court’s dismissal of Parkell’s complaint under § 1915(e)(2)(B). See Allah v.
    Seiverling, 
    229 F.3d 220
    , 223 (3d Cir. 2000). A court must dismiss an in forma pauperis
    action that is frivolous or malicious, or fails to state a claim upon which relief may be
    granted. See 28 U.S.C. § 1915(e)(2)(B)(i)–(ii). A complaint is frivolous where it lacks
    an arguable basis in either law or fact. Neitzke v. Williams, 
    490 U.S. 319
    , 325 (1989).
    The standard for failing to state a claim under § 1915(e)(2)(B)(ii) is the same as that
    under Fed. R. Civ. P. 12(b)(6). See 
    Allah, 229 F.3d at 223
    . To pass muster under Rule
    12(b)(6), “a complaint must contain sufficient factual matter, accepted as true, to ‘state a
    claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 
    556 U.S. 662
    , 678 (2009)
    (quoting Bell Atl. Corp. v. Twombly, 
    550 U.S. 544
    , 570 (2007)).2 This standard is met
    “when the plaintiff pleads factual content that allows the court to draw the reasonable
    inference that the defendant is liable for the misconduct alleged.” 
    Id. 1 Parkell
    does not appeal the dismissal of his claims against Matthews and, on appeal,
    indicates that he no longer seeks injunctive relief.
    2
    We acknowledge Parkell’s argument that his complaint should have been deemed
    sufficient “unless it appears beyond doubt that [he] can prove no set of facts in support of
    his claim that would entitle him to relief.” See Conley v. Gibson, 
    355 U.S. 41
    , 45–46
    (1957). Twombly, however, rejected this standard to require factual allegations showing
    a plausible entitlement to relief. See Phillips v. Cnty. of Allegheny, 
    515 F.3d 224
    , 232–
    33 (3d Cir. 2008).
    4
    A district court must permit a plaintiff to amend claims that are dismissed for
    failure to state a claim under § 1915(e)(2)(B)(ii) unless amendment would be inequitable
    or futile. See Grayson v. Mayview State Hosp., 
    293 F.3d 103
    , 106 (3d Cir. 2002).
    Amendment is futile where the complaint as amended would still fail to state a claim for
    relief. In re Merck & Co., Inc. Sec., Derivative & ERISA Litig., 
    493 F.3d 393
    , 400 (3d
    Cir. 2007) (citation omitted). We liberally construe Parkell’s pro se complaint. See
    Erickson v. Pardus, 
    551 U.S. 89
    , 94 (2007).
    Failure to Protect
    As the District Court noted, several of Parkell’s claims of insufficient amenities
    and other deprivations—including showers, shaving opportunities and razors, clothes and
    laundering, telephones, exercise space, food portions, overcrowded cells, inadequate
    guard staffing, and mixed pretrial and post-conviction housing—duplicated those already
    dismissed in Parkell v. Morgan under the at-least-equally protective standard for pretrial
    detainees. See Bell v. Wolfish, 
    441 U.S. 520
    , 545 (1979).3 The District Court therefore
    properly dismissed these claims under § 1915(e)(2)(B)(i). See Deutsch v. United States,
    
    67 F.3d 1080
    , 1086–87 (3d Cir. 1995).
    3
    While Parkell alleged that pretrial detainees also suffered constitutional deprivations as
    a result of these conditions, he clarifies on appeal that he was a convicted inmate, not a
    pretrial detainee, during the time relevant to his complaint. Therefore, we need not
    consider whether his allegations state such a Fourteenth Amendment claim. See 
    Bell, 441 U.S. at 545
    .
    5
    However, Parkell argues on appeal that he is not in this case reasserting a
    conditions-of-confinement claim.4 Rather, Parkell maintains that he alleged certain
    conditions at HYRCI to show the prison’s role in causing the injury he suffered. Parkell
    acknowledges that some of his allegations duplicated those in Parkell v. Morgan, but
    points out the attack and its aftermath, which are the primary focus of this case, did not
    occur until after his conditions-of-confinement claims in the first case were dismissed.
    Parkell correctly observes that the District Court did not consider whether his allegations
    in this case supported a failure-to-protect claim.
    While the Eighth Amendment requires prison officials “to protect prisoners from
    violence at the hands of other prisoners,” not every prisoner-inflicted injury amounts to a
    constitutional violation. Farmer v. Brennan, 
    511 U.S. 825
    , 833–34 (1994). To state a
    failure-to-protect claim, a prisoner “must plead facts that show (1) he was incarcerated
    under conditions posing a substantial risk of serious harm, (2) the official was
    deliberately indifferent to that substantial risk to his health and safety, and (3) the
    official’s deliberate indifference caused him harm.” Bistrian v. Levi, 
    696 F.3d 352
    , 367
    (3d Cir. 2012) (citing 
    Farmer, 511 U.S. at 834
    ). An official acts with deliberate
    indifference when he or she knows of and disregards a substantial risk of serious harm to
    inmate health or safety. 
    Farmer, 511 U.S. at 837
    . It does not matter “whether a prisoner
    4
    Inconsistently, Parkell at one point states that some of the conditions he described
    amounted to constitutional violations on their own. Regardless, the District Court did not
    err in holding that the conditions alleged, considered individually, did not rise to the level
    of Eighth Amendment violations.
    6
    faces an excessive risk of attack for reasons personal to him or because all prisoners in
    his situation face such a risk.” 
    Id. at 843.
    Assuming the truth of Parkell’s factual allegations and construing them liberally,
    they suggest that overcrowding and insufficient provisions led to violent competition
    among inmates, creating a substantial risk that an inmate might be seriously harmed, such
    as Parkell eventually was, in a fight over provisions. See 
    id. at 834;
    Bistrian, 696 F.3d at
    367
    . As for deliberate indifference, Parkell alleged that he complained of the dangerous
    conditions to HRYCI “lieutenants.” He also claimed that the officer on duty the day of
    his attack either was absent from his post or otherwise failed to intervene for
    approximately five minutes as Parkell was beaten. However, Parkell did not sue these
    guards, but only managerial and policy-making officials.
    To establish that a supervisor was deliberately indifferent, Parkell must identify a
    specific policy or practice that the supervising official failed to employ and show that the
    existing policy or procedure created an unreasonable risk of a constitutional violation,
    that the official was aware of but indifferent to the risk, and that the policy or procedure
    caused constitutional injury. See Beers-Capitol v. Whetzel, 
    256 F.3d 120
    , 134 (3d Cir.
    2001) (citing Sample v. Diecks, 
    885 F.2d 1099
    , 1118 (3d Cir. 1989)). We have held that
    these elements are met where the supervisor “failed to respond appropriately in the face
    of an awareness of a pattern of such injuries” or where “the risk of constitutionally
    cognizable harm is so great and so obvious that the risk and the failure of supervisory
    7
    officials to respond will alone support” a finding of deliberate indifference. 
    Sample, 885 F.2d at 1118
    .
    We cannot infer from Parkell’s allegations, even construed liberally, that Markell
    or Biden—even if they allegedly failed to build more prison space or pursue institutional
    reform—either played a role in determining the prison conditions creating the risk of his
    injury, or were aware of that risk. See 
    Beers-Capitol, 256 F.3d at 134
    . While the case
    against Morgan and Coupe is closer, Parkell’s allegations are too conclusory to support
    an inference of deliberate indifference. See 
    Iqbal, 556 U.S. at 678
    . Parkell does not
    indicate, for example, how frequently fights over provisions occurred prior to his, how
    many had resulted in serious injury, and what prison guards’ actual response—outside of
    sounding an emergency alert—to such fighting consisted of. His complaint therefore
    does not plausibly suggest that the type of violent dispute causing his injury was so
    pervasive, injurious, and predictable, and guards’ typical responses so ineffectual, that
    Morgan and Coupe must have been aware of a problem merely by virtue of their
    institutional roles. See 
    Sample, 885 F.2d at 1118
    .5
    However, Parkell’s allegations as to Morgan and Coupe are not so implausible as
    to be factually or legally frivolous. See 
    Neitzke, 490 U.S. at 325
    . He conceivably could
    5
    Parkell also claimed that Morgan and Coupe failed to properly train their subordinate
    officers, leading to the constitutional deprivations he alleges. See Connick v. Thompson,
    
    131 S. Ct. 1350
    , 1359–60 (2011). This theory, typically used to hold municipalities
    liable under § 1983, see 
    id., does little
    to assist Parkell. He still must show the prison
    officials’ personal involvement in the unconstitutional conduct to hold them liable for
    damages. See Rode v. Dellarciprete, 
    845 F.2d 1195
    , 1207 (3d Cir. 1988).
    8
    address their deficiencies so as to nudge his failure-to-protect claim over the line into
    plausibility. See In re Merck & 
    Co., 493 F.3d at 400
    . The District Court erred in
    denying Parkell an opportunity to amend his complaint and flesh out his claim against
    Morgan and Coupe. See 
    Grayson, 293 F.3d at 106
    .
    Denial of Medical Care
    The District Court also dismissed as frivolous Parkell’s claim that HRYCI
    officials unconstitutionally denied him adequate medical care during the period following
    his emergency surgery. Denial of medical care violates the Eighth Amendment where a
    prison official is deliberately indifferent to a prisoner’s serious medical need. See Rouse
    v. Plantier, 
    182 F.3d 192
    , 197 (3d Cir. 1999). Such deliberate indifference can occur
    where a prison official “knows of a prisoner’s need for medical treatment but
    intentionally refuses to provide it” or “prevents a prisoner from receiving needed or
    recommended medical treatment.” 
    Id. Neither “mere
    allegations of malpractice” nor a
    prisoner’s disagreement with prison medical professionals as to the proper method of
    treatment rises to the level of an Eighth Amendment violation. See Monmouth Cnty.
    Corr. Institutional Inmates v. Lanzaro, 
    834 F.2d 326
    , 346 (3d Cir. 1987) (citations
    omitted).
    Parkell alleged that Morgan and Coupe6 “enacted or maintained” an anti-narcotics
    policy that prevented him from receiving medication of the strength, frequency, and
    6
    Parkell did not implicate any other Appellees in his denial of medical care claim.
    9
    duration “ordered for his recovery” at Christiana Hospital. The District Court reasoned
    that Parkell’s claim failed because he had simply alleged a disagreement with HRYCI
    personnel over choice of medication. See 
    id. However, construed
    liberally, Parkell’s
    complaint did not describe a scenario where HRYCI personnel pursued a course first and
    foremost aimed at fully treating Parkell’s symptoms, and Parkell or another doctor
    merely preferred different treatment. Rather, Parkell alleged that his initial medical
    source prescribed a certain medication that HRYCI was prevented from providing—or
    replacing with an alternative of comparable strength—by an administrative policy
    potentially grounded in a nonmedical rationale. See Durmer v. O’Carroll, 
    991 F.2d 64
    ,
    69 (3d Cir. 1993). Assuming oxycodone was, in fact, necessary, HRYCI may have
    provided Parkell with not merely alternative, but qualitatively inferior and inadequate,
    medical care. See 
    Rouse, 182 F.3d at 197
    ; West v. Keve, 
    571 F.2d 158
    , 161 (3d Cir.
    1978) (holding that an unconstitutional denial of medical care occurred where deliberate
    indifference by prison officials “caused an easier and less efficacious treatment to be
    provided”).7
    However, Parkell’s complaint does not indicate whether a physician at Christiana
    Hospital prescribed oxycodone for an extended period which included his return to
    HYCRI. If that were the case, the HRYCI policy might have prevented the receipt of
    7
    Whether Appellees can point to a legitimate penological reason for the medication
    policy to sufficiently justify its impact on Parkell’s medical care, see Turner v. Safley,
    
    482 U.S. 78
    , 89 (1987), is not before us at this juncture, with Appellees having yet to
    10
    “needed or recommended medical treatment.” See 
    Rouse, 182 F.3d at 197
    . Absent such
    detail, Parkell’s allegations are equally consistent with lawful and unconstitutional
    behavior, and therefore insufficient to state a plausible claim. See 
    Twombly, 550 U.S. at 567
    –68. Moreover, he has not plausibly alleged deliberate indifference. See 
    Rouse, 182 F.3d at 197
    . He does not indicate that Morgan or Coupe either knew of prisoner suffering
    caused by the anti-narcotics policy, or that such suffering was so pervasive or well-
    documented that the officials must have known of it. See 
    Beers-Capitol, 256 F.3d at 134
    .
    While Parkell’s denial-of-medical-care claim is not so ungrounded as to be
    frivolous, see 
    Neitzke, 490 U.S. at 325
    , it falls short of stating a plausible Eighth
    Amendment claim. See 
    Iqbal, 556 U.S. at 678
    . However, because amendment could
    possibly produce a viable claim against Morgan and Coupe, the District Court erred in
    dismissing this claim with prejudice. See 
    Grayson, 293 F.3d at 106
    .
    Substantive Due Process
    Parkell also claimed that the prison conditions and the denial of his grievances
    concerning them constituted Fourteenth Amendment violations. His sparse allegations
    on point did not indicate his legal theory, and the District Court appears to have
    interpreted them to allege that he was impermissibly subjected to punishment while still a
    pretrial detainee. However, on appeal, Parkell argues that he was alleging substantive
    due process violations. Because he challenges executive action, his allegations must
    indicate that (1) officials “have been deliberately indifferent to a liberty interest” and (2)
    receive and answer the complaint.             11
    their behavior in depriving that interest was “‘so egregious, so outrageous, that it may
    fairly be said to shock the contemporary conscience.’” See Leamer v. Fauver, 
    288 F.3d 532
    , 546–47 (3d Cir. 2002) (quoting Cnty. of Sacramento v. Lewis, 
    523 U.S. 833
    , 847
    n.8 (1998)).
    Parkell had no constitutionally protected liberty interest in receiving a particular
    result through the prison grievance process. See Massey v. Helman, 
    259 F.3d 641
    , 647
    (7th Cir. 2001). As for Parkell’s allegations concerning prison conditions, his injury, and
    his medical treatment, they are properly analyzed under the specific constitutional
    protections for convicted prisoners. See Albright v. Oliver, 
    510 U.S. 266
    , 273 (1994).
    The District Court therefore properly dismissed this claim, albeit for other reasons.
    Based on the foregoing, we will vacate the dismissal of Parkell’s failure-to-protect
    and denial-of-medical-care claims against Morgan and Coupe, and affirm the District
    Court’s judgment as to all remaining claims against all parties. We will remand for
    further proceedings consistent with this opinion.
    12
    

Document Info

Docket Number: 14-3989

Citation Numbers: 622 F. App'x 136

Judges: Greenaway, Scirica, Rendell

Filed Date: 7/27/2015

Precedential Status: Non-Precedential

Modified Date: 11/6/2024

Authorities (24)

michael-massey-inmate-at-the-federal-correctional-center-in-pekin , 259 F.3d 641 ( 2001 )

Connick v. Thompson , 131 S. Ct. 1350 ( 2011 )

Bell v. Wolfish , 99 S. Ct. 1861 ( 1979 )

Norman Grayson v. Mayview State Hospital Allegheny County ... , 293 F.3d 103 ( 2002 )

kermit-west-v-paul-w-keve-in-his-capacity-as-director-of-the-division-of , 571 F.2d 158 ( 1978 )

Neitzke v. Williams , 109 S. Ct. 1827 ( 1989 )

Phillips v. County of Allegheny , 515 F.3d 224 ( 2008 )

Melvin P. Deutsch v. United States , 67 F.3d 1080 ( 1995 )

michael-malik-allah-v-thomas-seiverling-robert-sparbanie-john-deletto-ben , 229 F.3d 220 ( 2000 )

amie-marie-beers-capitol-aliya-tate-v-barry-whetzel-an-individual-shirley , 256 F.3d 120 ( 2001 )

charles-a-leamer-jr-v-william-h-fauver-william-f-plantier-scott , 288 F.3d 532 ( 2002 )

Farmer v. Brennan , 114 S. Ct. 1970 ( 1994 )

County of Sacramento v. Lewis , 118 S. Ct. 1708 ( 1998 )

Bell Atlantic Corp. v. Twombly , 127 S. Ct. 1955 ( 2007 )

Joel E. Durmer v. Dr. J. O'carroll, M.D. Robert C. Barker ... , 991 F.2d 64 ( 1993 )

In Re Merck & Co. Securities & ERISA Litigation , 493 F.3d 393 ( 2007 )

vivian-m-rode-and-jay-c-hileman-v-nicholas-g-dellarciprete-john , 845 F.2d 1195 ( 1988 )

Conley v. Gibson , 78 S. Ct. 99 ( 1957 )

Turner v. Safley , 107 S. Ct. 2254 ( 1987 )

Ashcroft v. Iqbal , 129 S. Ct. 1937 ( 2009 )

View All Authorities »