PHILADELPHIA – A federal judge has, for a second time, partially dismissed without prejudice claims from a man incarcerated at the Philadelphia Industrial Correctional Center, who insisted that prison officials ignored the prior conduct of two fellow inmates with a propensity for violent behavior, who attacked the plaintiff with a homemade weapon two summers ago.
Anthony Autry first filed suit in the U.S. District Court for the Eastern District of Pennsylvania on April 19, 2023 versus the City Of Philadelphia, Prison Commissioner Blanche Carney (in her individual and official capacities), Warden Pierre LaCombe (in his official capacity), Deputy Warden William Vetter (in his official capacity) Correctional Officer Romando Nicholls (in his individual and official capacities) and John Doe Correctional Officers Nos. 1-10. All parties are of Philadelphia.
(Correctional Officers Al-Hakim Lewis and Gilbert Gibson were added as defendants in an amended complaint filed on Nov. 13.)
“At all times relevant to this action, plaintiff was an inmate at PICC, a prison in the Philadelphia Prison System. On or about Thursday, Aug. 11, 2022, plaintiff was assigned to Cell No. 24 on block H1. Plaintiff was a pretrial detainee. Plaintiff was also confined in the Philadelphia Prison System pursuant to a Pennsylvania Department of Corrections state parole detainer. Kevin Wingfield and Nibri Watson were both inmates in the Philadelphia Prison System on or about Aug. 11, 2022. On the same date, Wingfield and Watson were housed together in PICC Cell No. 26 on block H1,” the suit said.
“On the same date, defendant Corrections Officer Romando Nicholls was assigned to monitor block H1 for the 3 p.m. to 11 p.m. shift. At all times relevant to this action defendants Nicholls, Carney, LaCombe, Vetter and John Doe Correctional Officers Nos. 1-10 were employed by defendant City of Philadelphia. On the same date, at approximately 8:33 p.m., plaintiff was attacked by inmates Winfield and Watson. Plaintiff was stabbed with an unknown object. Plaintiff was transported to the medical unit at PICC. Due to the extent of his injuries, plaintiff was then transported to Jefferson-Torresdale hospital. Plaintiff suffered multiple injuries.”
The suit added that among his severe injuries, the plaintiff suffered a deep laceration approximately six inches in length to his left eye and two deep puncture wounds approximately two inches in depth to his back, wounds which respectively required sutures and stitches to close.
“Following the attack on plaintiff, a search was conducted of the trash can on the top tier of block H1 and one homemade weapon approximately seven inches long was recovered. Following the attack on plaintiff, a search was conducted of Wingfield and Watson’s Cell No. 26 and one homemade weapon approximately four inches long was recovered from the toilet bowl. Prior to the attack on plaintiff, inmates Wingfield and/or Watson engaged in conduct that required them to be kept separate and segregated from other inmates like plaintiff, yet no action was taken. The City of Philadelphia has a history of understaffing and failing to protect inmates like plaintiff from known, dangerous inmates, failing to monitor inmates for inmate safety and failing to ensure that security protocols are being followed to ensure inmate safety,” the suit stated.
“As a result of the prior conduct of Wingfield and/or Watson, defendants knew inmates Wingfield and/or Watson had a propensity to attack other inmates like plaintiff. As a result of the prior conduct of Wingfield and/or Watson, defendants knew or had reason to know inmates Wingfield and/or Watson would attack plaintiff and did nothing about it. On the same date and time, defendant City of Philadelphia did not properly train and/or supervise defendant Nicholls and defendant Correctional Officers John Does #1-10 how to properly discipline an inmate, and/or did not properly train and/or supervise its staff of correctional officers generally.”
The named defendants motioned to dismiss the case in its entirety on May 23, 2023 for failure to state claims upon which relief could be granted.
“Although plaintiff alleges that ‘prior to the attack on plaintiff, Inmates Wingfield and/or Watson engaged in conduct that required them to be kept separate and segregated from other inmates like plaintiff,’ plaintiff fails to provide any supporting factual details, such as the conduct that Wingfield and/or Watson engaged in, why the conduct required them to be kept separate and segregated, who within PDP had knowledge of this prior conduct, and when prior to the attack the conduct in question occurred. Further, although plaintiff alleges that defendant Nicholls was assigned to monitor the areas where plaintiff, Wingfield and Watson were housed that day, the complaint lacks any non-conclusory allegations that Nicholls knew Winfield and Watson posed a danger to plaintiff,” the dismissal motion said.
“Nor does plaintiff allege in a non-conclusory fashion that defendant Nicholls was present for the actual attack, that Nicholls had a realistic opportunity to intervene more quickly than he did or that Nicholls refused to intervene more quickly than he did despite the clear opportunity for him to do so. Although plaintiff also brings claims against defendants Carney, LaCombe and Vetter, plaintiff’s complaint is lacking in specific allegations as to each of their personal participation in the incident specifically involving plaintiff. Finally, while plaintiff brings a Monell claim against the City of Philadelphia, that claim is based on dissimilar previous alleged incidents that lack any connection to plaintiff’s injury and on boilerplate and conclusory allegations concerning an alleged failure to discipline, supervise, and/or train.”
On Oct. 10, U.S. District Court for the Eastern District of Pennsylvania Judge Paul S. Diamond granted the defendants’ motion and dismissed the plaintiff’s claims, without prejudice.
“[In order] to make out a Section 1983 claim, plaintiff must allege that each individual defendant was personally involved in the wrongful conduct alleged. Allegations of respondeat superior will not suffice. Rather, plaintiff must plead facts that establish that supervisors ‘directed the alleged violation or had actual knowledge of the violation and acquiesced to it.’ Plaintiff makes no specific allegations as to any individual defendant. Rather, he alleges only that ‘defendants’ knew of and were deliberately indifferent to’ the risks posed by inmates Wingfield and Watson. He further alleges that inmates Wingfield and Watson ‘engaged in conduct that required them to be kept separate and segregated, yet no action was taken.’ Plaintiff fails to explain, however, what that conduct was or how each defendant acted wrongfully or with wrongful knowledge. Accordingly, I will dismiss the claims against these defendants without prejudice,” Diamond stated.
“Plaintiff has [also] failed to allege adequately a wrongful City policy or custom. Plaintiff accuses the City of a failure to train correctional officers and a failure to supervise inmates. Plaintiff states that there is a ‘history of correctional officer employees failing to…ensure known, dangerous inmates are kept in segregation,’ and that the City has ‘adopted and maintained for many years, a recognized and accepted policy, custom and/or practice of failing to properly train…its employees including the [named defendants].’ These conclusions are not supported with any factual assertions, however. Plaintiff also fails to identify a pattern of similar constitutional violations that would require the City to implement new training or programs under Johnson. Although plaintiff briefly alleges a history of inmate violence in Philadelphia prisons and less-than-promptly-provided medical treatment, he does not make out a pattern or policy of fostering violence or deliberate indifference. In these circumstances, I will dismiss plaintiff’s claims against the City without prejudice.”
Diamond went on to also dismiss the claims lodged against Nicholls and the Doe defendants.
Diamond further ordered that the plaintiff had until Oct. 31 to file an amended complaint, which was later extended to Nov. 13, and the plaintiff met that deadline. The defendants then filed a motion to dismiss the amended complaint on Jan. 4.
In the amended complaint, Autry brought four claims against the defendants: (1) Eighth and Fourteenth Amendment through 42 U.S.C. Section 1983 against the individual defendants; (2) Failure to protect against the individual defendants; (3) Failure to intervene against Nicholls, Lewis, Gibson and John Does Nos. 1-10; and (4) Monell liability under 42 U.S.C. Section 1983 against the City based on their failure to train and supervise.
UPDATE
In a Feb. 26 judicial order, Diamond granted the defense motion and issued a partial dismissal of the plaintiff’s claims without prejudice.
“Plaintiff has again failed to make out a Section 1983 claim against [Commissioner Carney, Warden Lacombe and Deputy Warden Vetter]. In his amended complaint, plaintiff alleges that Carney, Lacombe and Vetter ‘knew about [Wingfield and Watson’s] prior assault’ because it would have been reported to them. Plaintiff also alleges that these defendants were ‘responsible for ensuring policies and procedures were followed [by] corrections officers.’ Plaintiff has not cured the defects that warranted dismissal of his first complaint. Plaintiff alleges these defendants had only general knowledge about the prior assault and fails to plead any personal involvement in the decision to allow Wingfield and Watson into general population on the day of plaintiff’s assault. Because there are no ‘allegations that [these defendants] were personally involved in the decision to house [Wingfield and Watson] in the same unit as [plaintiff]…[plaintiff’s allegations are] insufficient to allege personal involvement’ and his claims against these defendants fail. Accordingly, I will dismiss the claims against Commissioner Carney, Warden Lacombe and Deputy Warden Vetter,” Diamond said.
“Plaintiff again accuses the City of a failure to train Correctional Officers and a failure to supervise its employees. Plaintiff urges that six past incidents show that the Philadelphia Prison System exhibited a pattern or ‘a history of failing to identify and segregate inmates who posed a ‘specific and substantial’ risk to other incarcerated people.’ This, plaintiff asserts, amounts to deliberate indifference to the rights of prisoners under the Fourth, Eighth and Fourteenth Amendments. As I have discussed, plaintiff has pled sufficient facts to show that the pre-hearing segregation policy was not followed by the individual Correctional Officers in this instance. He has failed, however, to connect the instant failure to the past examples he offers – none of which dealt with assaults where the attackers were placed on pre-hearing segregation. As with his first complaint, the prior incidents plaintiff cites are ‘too dissimilar to show that [the City’s] alleged failure to train [and supervise]’ its correctional officers was the type of ‘conscious choice’ that allows for Monell liability. Because plaintiff has failed to identify a pattern or policy of allowing pre-hearing segregation prisoners into general population, or acquiescence to this practice, I will dismiss his Monell claim.”
As to three Section 1983 claims against defendants Nicholls, Lewis, Gibson and John Does 1-10, Diamond said the plaintiff “has not alleged the John Doe defendants’ personal involvement, does not allege that these unnamed defendants were assigned to monitor plaintiff’s cell block during the previous or instant assaults and thus, dismissed the claims against the John Doe defendants because “plaintiff has failed to allege personal direction or actual knowledge of and acquiescence in the decision to permit Wingfield and Watson into the general population.”
“Plaintiff pleads sufficient facts to make out a failure to protect claim against Nicholls, Lewis, and Gibson. Plaintiff has alleged that these defendants: (1) were assigned to monitor plaintiff’s cell block the night of plaintiff’s assault; (2) knew about Wingfield and Watson’s prior violent conduct; (3) were aware Wingfield and Watson were placed on pre-hearing segregation; (4) knew such a classification indicated these inmates ‘posed a serious threat to life or security of the other inmates;” (5) knew that Wingfield and Watson ‘intended to harm plaintiff;’ and (6) permitted Wingfield and Watson to join general population despite their classification. As alleged, these defendants must have known the risk to which they exposed plaintiff. Accordingly, plaintiff’s failure to protect claims against Nicholls, Lewis and Gibson survive defendants’ motion,” Diamond stated.
“Plaintiff’s allegations here are insufficient. Even taking as true that Nicholls ‘observed Wingfield and Watson’ outside their cells as they approached plaintiff, he has failed to allege facts that support his conclusory allegation that these defendants had a ‘reasonable opportunity to intervene.’ He does not explain where on the unit the assault occurred, how far away Nicholls was stationed, what events preceded the assault, how long the assault lasted, ‘or how [Nicholls] could have reasonably prevented further harm through [his] intervention.’ His claims against Gibson and Lewis are even more threadbare. He fails to allege that these defendants even saw Wingfield and Watson outside their cells. In these circumstances, I will dismiss plaintiff’s failure to intervene claims.”
Diamond granted the defendants’ motion to dismiss in part, permitting Autry to proceed against defendants Nicholls, Lewis and Gibson on Counts I and II.
Diamond added that all claims against defendants Carney, Lacombe, Vetter and John Does 1-10 were dismissed without prejudice; Count III was dismissed without prejudice; Count IV against the City of Philadelphia was dismissed without prejudice and Autry would be permitted to file a second amended complaint or inform the Court if he intends to stand on his remaining claims no later than March 11 – failure to do so on Autry’s part would then result in dismissal with prejudice of all his previously-dismissed claims.
For counts of state-created danger, failure to protect and failure to intervene through violating the Eighth and Fourteenth Amendments to the U.S. Constitution and Monell liability under 42 U.S.C. Section 1983, the plaintiff is seeking damages in excess of $150,000, together with delay damages, interest, costs, attorneys’ fees and declaratory and injunctive relief.
The plaintiff is represented by Brian J. Zeiger of Levin & Zeiger and Lauren A. Wimmer of Wimmer Criminal Defense, both in Philadelphia.
The defendants are represented by Jonah Santiago-Pagan of the City of Philadelphia’s Law Department.
U.S. District Court for the Eastern District of Pennsylvania case 2:23-cv-01501
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com