The opinion of the court was delivered by: Noel L. Hillman, U.S.D.J.
1. Steven Grohs, who is currently civilly committed to the Special Treatment Unit as a sexually violent predator, filed an Amended Complaint (Docket Entry #10) against the Department of Corrections, prior Commissioner George W. Hayman, Administrator Karen Balicki, and corrections officers Hanby, Jackson and D'Amico. Plaintiff asserted violation of his constitutional rights under 42 U.S.C. § 1983 arising from his incarceration as a prisoner at South Woods State Prison ("SWSP") in 2009.
2. On June 8, 2010, this Court dismissed the Amended Complaint. (Docket Entry Nos. 8, 9.) This Court granted Plaintiff leave to file a second amended complaint stating a cognizable claim under 42 U.S.C. § 1983 for failure-to-protect under the Eighth Amendment, access to courts under the First Amendment, and retaliation under the First Amendment. (Id.)
3. On July 7, 2010, Plaintiff filed a Second Amended Complaint naming corrections officers Hanby, Jackson, and D'Amico as defendants. (Docket Entry #11.) The Second Amended Complaint attempts to correct the deficiencies in the Amended Complaint and to assert § 1983 claims of failure-to-protect, access to courts, and retaliation.
4. This Court dismissed the failure-to-protect claim in the Amended Complaint because (a) Plaintiff did not assert facts showing he faced a substantial risk of serious harm of being assaulted by inmates as a result of statements made by defendants which revealed that he was a child molester (objective component), and (b) Plaintiff did not assert facts showing that defendants were deliberately indifferent to a substantial risk of harm. (Docket Entry #8, pp. 12-13.)
5. In the Second Amended Complaint, Plaintiff asserts that in July 2009, defendants Jackson and D'Amico asked him what he was convicted of, and when Plaintiff answered evasively, Jackson stated that he would look his conviction up on the computer. (Docket Entry #11, pp. 7-9.) Plaintiff alleges that later that month, Jackson and D'Amico began to call Plaintiff a child molester in front of other inmates. Plaintiff asserts that inmate Christopher Crouch repeated defendants' taunts and "told plaintiff he hated child molesters. Subsequently, on or about August 2, 2009, this inmate attacked plaintiff . . . because he hates child molesters." (Id. at p. 8.) Plaintiff states that he was charged with fighting, but the charge was rescinded on August 14, 2009. Plaintiff further alleges that other inmates, likeminded as inmate Crouch, expressed derogatory behavior towards plaintiff and/or otherwise accosted plaintiff with, what plaintiff took as, idle threats.
DOC records indicate that plaintiff was given a housing unit change.
Among DOC officers and the inmate general population, it is a well known fact that a majority of inmates despise child molesters and they often assault those inmates incarcerated for a sex-crime. Armed with such knowledge, Jackson and D'Amico knew that their aforesaid language would ultimately cause an excessive risk for plaintiff. (Docket Entry #11, p. 8.)
6. Plaintiff alleges that defendants created a substantial risk of harm by calling him a child molester in front of inmates, that on August 2, 2009, inmate Crouch attacked Plaintiff because Crouch hates child molesters, and that officials thereafter moved Plaintiff to a different housing unit. But the allegations in the Second Amended Complaint do not correct the deficiencies cited in this Court's Opinion.
7. As this Court noted in its prior Opinion, to satisfy the objective component, an inmate must state facts showing a pervasive risk of harm, which "may not ordinarily be shown by pointing to a single incident or isolated incidents, but it may be established by much less than proof of a reign of violence and terror." Riley v. Jeffes, 777 F. 2d 143, 147 (3d Cir. 1985). Because Plaintiff has alleged a single incident, his allegations fall "short of alleging that the risk to which he was purportedly subjected was substantial." Day v. Federal Bureau of Prisons, 233 Fed. App'x 132, 134 (3d Cir. 2007); see also Matthews v. Villella, 2010 WL 2017664 at *2 (3d Cir. 2010) (single incident does not allege pervasive risk of harm necessary to state failure-to-protect claim).*fn1
8. Nor do Plaintiff's amended allegations satisfy the deliberate indifference standard. To satisfy the deliberate indifference standard, an inmate must assert facts showing that the defendant knows of a substantial risk and fails to respond reasonably to that risk. Farmer v. Brennan, 511 U.S. 825, 837 (1994). In this case, officials reasonably responded to the attack on ...