PHILADELPHIA – After seeing the initial version of their complaint dismissed, the parents of a pre-trial detainee who was assaulted and killed by individuals he was incarcerated with two years ago have brought new litigation against the City of Philadelphia and several corrections co-defendants.
Eva Diaz and Frankie Diaz (as Administrators of the Estate of Frankie Diaz Jr.) first filed suit in the U.S. District Court for the Eastern District of Pennsylvania on Aug. 17 versus the City of Philadelphia, Warden Pierre LaCombe, Prison Commissioner Blanche Carney and John Doe Corrections Officers 1-10.
“On or about Aug. 18, 2020, Frankie Diaz was a pre-trial detainee at the Detention Center in Philadelphia. During his detention while awaiting trial, and during the COVID-19 pandemic, Diaz had contracted COVID-19. Diaz had struggled with drug addiction over the course of his live, including being addicted to heroin. While incarcerated, Diaz had several fights and disagreements on his block which amounted to a group of inmates, including but not limited to Inmate Adam Tann, PP#1032771 making and acting on threats to harm the plaintiff’s decedent, all facts of which the defendants, in particular COs 1-10, were aware both from their actual experience and observations, and from being told by the plaintiff’s decedent and/or other inmates or correctional officers,” the suit said.
“Despite these concerns, the City acting through defendant LaCombe and John Doe Corrections Officers 1-10, continued to place Diaz on the prison block which was substantially understaffed with the group of inmates and/or individuals who they had knowledge presented a threat to Diaz’s health and safety. Approximately one week before Aug. 18, Diaz was involved in a significant fight and/or altercation with the above referenced group of individuals, including Adam Tann, again of which the defendants, in particular Corrections Officers 1-10, were aware as set forth above. On Aug. 18, 2020 Diaz was on the cell block in the shower area of Section 303 dormitory when he was attacked by Adam Tann and upon information and belief, a group of individuals which whom he had prior altercations with. The shower area was unguarded, or in the alternative the guards in that area did nothing to intervene in the attack.”
The suit added that no corrections officers intervened in the ultimately fatal melee.
“When Diaz was attacked, he screamed for help but no Correctional Officers were
present, or in the alternative, those present refused and/or failed to intervene in deliberative indifference to the plaintiff’s constitutional rights. Plaintiff’s decedent was violently assaulted and suffered significant injuries including bilateral nasal fractures, contusions, bruising and swelling around his left eye, numerous lacerations to the right forehead and left upper and lower lips, left periorbital purple ecchymosis, a focal right frontal subscapular hemorrhage, focal subcutaneous soft tissue hemorrhage at the left posterior angle of the neck and left sternocleidomastoid muscle, and a large subarachnoid hemorrhage with diffuses cerebral edema as a result of the trauma. Plaintiff’s decedent was found some indeterminate amount of time later by correctional officers, upon information and belief one of more of the correctional officers who was supposed to be guarding the shower and who is identified herein as Correctional Officers 1-10,” the suit stated.
“He was found on the ground, unresponsive and not breathing and was rushed to Aria Jefferson Hospital where attempts at revival were made, care was rendered, and the plaintiff’s decedent was ultimately pronounced death on Aug. 19, 2020. It is alleged and averred that this assault had been overheard by other inmates, however, no guards were present, or in the alternative, those that were present ignored the altercation and the plaintiff’s cries for help. Inexplicably the shower – a common area for assaults to occur – and a dangerous area – was free of any guards whatsoever at the time of the attack and it was not until the plaintiff’s decedent was already dead that guards arrived.”
The defendants filed a motion to dismiss the case with prejudice on Sept. 8, for alleged failure to state claims upon which relief could be granted.
“First, plaintiffs’ Section 1983 claims based on the alleged failure to protect and/or to intervene to stop the fatal inmate-on-inmate assault fail, because the complaint contains only conclusory allegations, which are inadequate to plead that any individual corrections official knew of and ignored a specific threat to plaintiffs’ Decedent’s safety and thus was deliberately indifferent to a significant risk of serious harm,” according to the dismissal motion.
“Second, the Complaint fails to set out factual allegations supporting the liability of Commissioner Carney or Warden LaCombe as policymakers, or the municipal liability of the City under Monell. Third and finally, the state-law negligence claim asserted against the City is barred by the Pennsylvania Political Subdivision Tort Claims Act.”
The motion added that the complaint “lacks non-conclusory allegations from which it can be plausibly inferred that any corrections officer or other City official was knowledgeable and deliberately indifferent to any specific threats to plaintiffs’ decedent’s safety.”
UPDATE
On Oct. 31, U.S. District Court for the Eastern District of Pennsylvania Judge Eduardo C. Robreno granted the defense’s motion and dismissed the plaintiffs’ complaint without prejudice.
“Plaintiffs have not alleged sufficient facts that would point to ‘an official proclamation, policy or edict by a decision-maker possessing final authority to establish municipal policy’ regarding the failure to hire sufficient prison guards. Mere knowledge of difficulties hiring and retaining enough employees is not the same as a policy to routinely hire fewer corrections officers than are needed to maintain safe premises,” Robreno said.
“Plaintiffs allege that this is the result of ‘a deliberate or conscious’ policy, however, plaintiffs only point to statements by high-ranking municipal officials and events evincing knowledge or constructive knowledge of understaffing. Plaintiffs overlook that the City has no control over the personal decisions of individual employees whether to show up for shifts, not show up for shifts, or quit their jobs as prison guards. It is settled that the City cannot be held liable on a theory of respondeat superior under Section 1983 for those individual decisions.”
While the plaintiffs have alleged that the City has taken some measures that might make the occupation less desirable, Robreno added that the plaintiffs have alleged no facts that indicate that there was a particular course of conduct in which, for instance, the hiring body for the Philadelphia Department of Prisons chose to hire fewer prison guards than were required.
“Even making all inferences in plaintiffs’ favor and taking all facts alleged as true, plaintiffs have not pled sufficient facts to show that discovery could lead them to state a claim for municipal liability on a custom or practice theory. Based on the foregoing, defendants’ motion to dismiss will be granted. Plaintiffs’ complaint does not currently allege sufficient facts to state a claim for relief under Section 1983 against individual defendants or the City of Philadelphia; rather, the complaint is rooted in legal conclusions and recitations of fact that do not meet the high bar of deliberate indifference. Plaintiffs’ complaint will be dismissed without prejudice. Plaintiffs are given 60 days to amend.”
In response to Robreno’s dismissal, an amended version of the complaint was filed on Dec. 27, naming Corrections Officers Nicole Taylor, Denise Wood and Wanda Britford, along with John Doe Corrections Officers 4-10.
For counts of survival, wrongful death, violations of the Fourteenth Amendment to the U.S. Constitution and negligence, the plaintiffs are seeking damages in excess of $150,000, including interest, delay damages, costs of suit, general and specific damages, including both survival and wrongful death damages, attorneys’ fees under 42 U.S.C. Sections 1985 and 1988 and any other damages legally appropriate at the time of a jury trial.
The plaintiffs are represented by Kevin P. O’Brien of Stampone Law, in Cheltenham.
The defendants are represented by Kathryn Faris and Adam Ross Zurbriggen of the City of Philadelphia’s Law Department.
U.S. District Court for the Eastern District of Pennsylvania case 2:22-cv-03286
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com