Opinion
Civil Action 3:20-CV-01106
03-03-2022
KEVIN DAVIS, Plaintiff, v. JOHN WETZEL, et al., Defendants.
BRANN, J.
REPORT AND RECOMMENDATION
KAROLINE MEHALCHICK CHIEF UNITED STATES MAGISTRATE JUDGE
Before the Court are two motions to dismiss, filed by DOC Defendants and Correct Care Defendants. (Doc. 38; Doc. 40). This case involves pro se prisoner-Plaintiff Kevin Davis (“Davis”), who initiated the above-captioned civil rights action pursuant to 42 U.S.C. § 1983, by filing the complaint on July 2, 2020. (Doc. 1). In his amended complaint, filed on October 25, 2021, Davis alleges that his First and Eighth Amendment rights were violated due to the theft of his property, improper medical treatment, and his transfer between prisons. (Doc. 37, at 7-16). Davis argues that such actions stemmed from retaliation by Defendants Sergeant Curran, Tammy Ferguson, Nedra Grego, Paul Noel, N. Ranker, Officer Rogers, Joseph Silva, John Steinhart, Rich Wenhold, John Wetzel (collectively, the “DOC Defendants”); and Correct Care Solutions (“CCS”), Jay Cowan, Darla Cowden (collectively, the “Correct Care Defendants”) in response to a lawsuit that Davis had previously filed. (Doc. 37, at 2-5). Davis seeks a declaratory judgment that his rights were violated; reimbursement for the cost of this action, of shipping property, and of stolen boots; repairs to be made to his radio; a preliminary injunction directing Defendant Darla to reinstate insulin treatments; and compensatory and punitive damages in the total amount of $70,000.00. (Doc. 37 at 16-17).
On February 4, 2022, Davis filed a motion for leave to amend. (Doc. 46). Davis argues that after he filed his first amended complaint, he received a “box of legal property, ” which contained items that establish Defendants had knowledge/was notified by Davis of the acts of retaliation and Defendants' responses. (Doc. 46, at 1-2). After reviewing the proposed second amended complaint filed with the motion, the Court finds that the pleading does not set forth new claims that would prevent the Court from addressing Defendants' pending motions to dismiss. For the reasons set forth in this report and recommendation, the undersigned recommends that Defendants' motions to dismiss be granted in part and denied in part, and that Davis be granted leave to file a second amended complaint, where he may include the allegations set forth in the proposed second amended complaint. Accordingly, Davis's motion for leave to amend is DENIED AS MOOT. (Doc. 46). Davis is also seeking a stay of the deadline to file a reply to Defendants' reply in support of the Motion to Dismiss. (Doc. 47). Such a brief would be considered a sur-reply under the Local Rules and would require permission of the Court to file the same. As the motions to dismiss are fully ripe and Davis presents no basis for filing a surreply, it is recommended that the motion to stay be DENIED.
Davis's previously filed lawsuit was filed on October 30, 2017. Davis v. Wetzel, No. 1:18-CV-00804 (M.D. Pa. Oct. 30, 2017), ECF No. 5.
In their motion to dismiss, the DOC Defendants aver that the claims against Defendants Wetzel, Ferguson, Steinhart, Noel, Wenhold, Silva, Grego, and Ranker should be dismissed for lack of personal involvement and that Davis's “access to courts claim should be dismissed with respect to all the named DOC Defendants for failure to state a claim upon which relief may be granted.” (Doc. 39, at 5-6). The Correct Care Defendants submit that the claims against Defendant Cowan should be dismissed for lack of personal involvement and that the claims against Defendant CCS should be dismissed for failure “to articulate a cognizable § 1983 claim.” (Doc. 41, at 4-5, 7).
For the reasons stated herein, it is recommended that Defendants' motions to dismiss be GRANTED IN PART and DENIED IN PART. (Doc. 38; Doc. 40).
I. Background
Davis is a Hepatitis-C positive prisoner currently incarcerated at the State Correction Institution in Fayette, Pennsylvania (“SCI-Fayette”). (Doc. 37, at 1, 6). On July 2, 2020, Davis filed the initial complaint. (Doc. 1). On July 20, 2020, Davis filed a motion for leave to proceed in forma pauperis, which this Court granted on August 18, 2020. (Doc. 4; Doc. 6). Davis also filed a motion to supplement his complaint on October 23, 2020, which the Court granted on October 19, 2021. (Doc. 19; Doc. 36). On October 16, 2020, the DOC Defendants filed a motion to dismiss, and on February 24, 2020, the Correct Care Defendants filed a motion to dismiss. (Doc. 16; Doc. 30). On September 18, 2021, the undersigned recommended that the Court grant the Defendants' motions to dismiss in part. (Doc. 35, at 2). Specifically, the undersigned recommended that the Court deny the Correct Care Defendants' motion as to the exhaustion claim, deny the DOC Defendants' motion as to the access to courts claim, and grant Defendants' motions as to the claims for lack of personal involvement. (Doc. 35, at 16, 20, 23-28, 30). On October 19, 2021, the Court adopted the recommendation, granting Davis leave to file an amended complaint as it pertains to the issues of personal involvement of Defendants Wetzel, Steinhart, Noel, Wenhold, Silva, Grego, Cowan, Ranker, and CCS. (Doc. 36, at 2). Further, the Court dismissed any claims against Defendant Ferguson, as Davis failed to allege a constitutional violation because a prisoner does not have a constitutional right to grievance procedures. (Doc. 36, at 2).
On October 30, 2017, Davis filed a related complaint in this matter in the United States District Court for the Western District of Pennsylvania. Davis v. Wetzel, No. 1:18-CV-00804 (M.D. Pa. Oct. 30, 2017), ECF No. 5. Davis also filed a motion to proceed in forma pauperis on October 27, 2017, which was granted by the Western District Court on October 30, 2017. Davis v. Wetzel, No. 1:18-CV-00804 (M.D. Pa. Oct. 27, 2017), ECF No. 2; Davis v. Wetzel, No. 1:18-CV-00804 (M.D. Pa. Oct. 30, 2017), ECF No. 4. The Western District Court transferred Davis's cause of action to the Middle District of Pennsylvania on April 9, 2018. Davis v. Wetzel, No. 1:18-CV-00804 (M.D. Pa. Apr. 9, 2018), ECF No. 46; Davis v. Wetzel, No. 1:18-CV-00804 (M.D. Pa. Apr. 13, 2018), ECF No. 47.
On October 25, 2021, Davis filed the amended complaint, naming the DOC Defendants, including Wetzel, Ferguson, Noel, Silva, Wenhold, Steinhart, Grego, Ranker, Curran, Rogers, and John Doe, as well as the Correct Care Defendants. (Doc. 37). On November 5, 2021, the DOC Defendants filed a motion to dismiss and brief in support. (Doc. 38; Doc. 39). On November 16, 2021, the Correct Care Defendants filed a motion to dismiss and brief in support. (Doc. 40; Doc. 41). On the same day, Defendant Darla Cowden filed an answer to the amended complaint. (Doc. 42). Davis filed briefs in opposition to the Defendants' motions to dismiss on December 20, 2021, and December 27, 2021, respectfully. (Doc. 43; Doc. 44). On January 11, 2022, the Correct Care Defendants filed a reply brief. (Doc. 45).
The events giving rise to Davis's cause of action stem from alleged retaliation due to the filing of a previous complaint. (Doc. 37, at 6). Davis claims that he was transferred to two different correctional institutions, that his personal property was stolen by correctional officers, and that the medical staff withheld Davis's treatment for his diabetes all in retaliation for his filing of a complaint. (Doc. 1, at 6-16). First, Davis states that he was transferred to State Correctional Institution at Graterford (“SCI-Graterford”), which “had the highest rate of assaults in Pennsylvania and a[n] institution where he had previously been assaulted, ” and was later transferred back to SCI-Fayette. (Doc. 37, at 7-11). Davis claims that due to the transfers, he feared for his life, lost his fiance, and missed a parole interview. (Doc. 37, at 11). Second, Davis alleges that upon his transfers his “legal and personal property” was destroyed including his typewriter, Timberland boots, and radio. (Doc. 37, at 11). Davis claims that the seizure of his property obstructed his access to the courts and prevented him from adequately litigating his pending civil action. (Doc. 37, at 12). Finally, Davis states that Defendants withheld his diabetic medical treatment, specifically his evening insulin treatments and finger pricks, when they learned that he had filed a complaint against prison officials. (Doc. 37, at 12-16). Davis claims that he suffers from numbness in his left arm which he believes to be “an indication of a mild heart attack or a stroke, ” and that Correct Care Defendants' failure to establish and implement a policy of monitoring their employees' performance placed Davis at risk. (Doc. 37, at 13, 15-16).
As for relief, Davis seeks declaratory judgment that the Defendants violated his First and Eighth Amendment rights. (Doc. 37, at 16). Davis also seeks to enjoin Defendant Darla to “reinstate Dr. Ko's prescribed insulin treatment . . . and evening finger [prick].” (Doc. 37, at 16). In addition, Davis seeks damages in the amount of the cost of this action, the cost of shipping property, and the cost of his stolen boots, along with a repair of his radio from a manufacturer in Boston, Massachusetts. (Doc. 37, at 17). Finally, Davis requests the Court award him compensatory, exemplary, consequential, and punitive damages, as well as such relief the Court deems just and equitable. (Doc. 37, at 17).
II. Standard of Review
Rule 12(b)(6) of the Federal Rules of Civil Procedure authorizes a defendant to move to dismiss for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). To assess the sufficiency of a complaint on a Rule 12(b)(6) motion, a court must first take note of the elements a plaintiff must plead to state a claim, then identify mere conclusions which are not entitled to the assumption of truth, and finally determine whether the complaint's factual allegations, taken as true, could plausibly satisfy the elements of the legal claim. Burtch v. Milberg Factors, Inc., 662 F.3d 212, 221 (3d Cir. 2011). In deciding a Rule 12(b)(6) motion, the court may consider the facts alleged on the face of the complaint, as well as “documents incorporated into the complaint by reference, and matters of which a court may take judicial notice.” Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007).
After recognizing the required elements which make up the legal claim, a court should “begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). The plaintiff must provide some factual ground for relief, which “requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). “[T]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678. Thus, courts “need not credit a complaint's ‘bald assertions' or ‘legal conclusions' ....” Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997) (quoting In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1429-30 (3d Cir. 1997)). Nor need a court assume that a plaintiff can prove facts that the plaintiff has not alleged. Associated Gen. Contractors of Cal. v. Cal. State Council of Carpenters, 459 U.S. 519, 526 (1983).
A court must then determine whether the well-pleaded factual allegations give rise to a plausible claim for relief. “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Palakovic v. Wetzel, 854 F.3d 209, 219-20 (3d Cir. 2017) (quoting Iqbal, 556 U.S. at 678) (internal quotation marks omitted); see also Sheridan v. NGK Metals Corp., 609 F.3d 239, 262 n.27 (3d Cir. 2010). The court must accept as true all allegations in the complaint, and any reasonable inferences that can be drawn therefrom are to be construed in the light most favorable to the plaintiff. Jordan v. Fox, Rothschild, O'Brien & Frankel, 20 F.3d 1250, 1261 (3d Cir. 1994). This “presumption of truth attaches only to those allegations for which there is sufficient factual matter to render them plausible on their face.” Schuchardt v. President of the U.S., 839 F.3d 336, 347 (3d Cir. 2016) (internal quotation and citation omitted). The plausibility determination is context-specific and does not impose a heightened pleading requirement. Schuchardt, 839 F.3d at 347.
Additionally, Federal Rule of Civil Procedure 8(a)(2) requires “a short and plain statement of the claim showing that the pleader is entitled to relief.” Thus, a well-pleaded complaint must recite factual allegations that are sufficient to raise the plaintiff's claimed right to relief beyond the level of mere speculation, set forth in a “short and plain” statement of a cause of action. There is no requirement that the pleading be specific or probable. Schuchardt, 839 F.3d at 347 (citing Phillips v. Cty. of Allegheny, 515 F.3d 224, at 233-234 (3d Cir. 2008). Rule 8(a) requires a “showing that ‘the pleader is entitled to relief, in order to give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.'” Erickson v. Pardus, 551 U.S. 89, 93-94 (2007) (quoting Fed.R.Civ.P. 8(a)(2)); see also Phillips, 515 F.3d at 233 (citing Twombly, 550 U.S. at 545).
With the aforementioned standards in mind, a document filed pro se is “to be liberally construed.” Estelle v. Gamble, 429 U.S. 97, 106 (1976). A pro se complaint, “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, 520-21 (1972). Further, the Third Circuit has instructed that if a complaint is vulnerable to dismissal for failure to state a claim, the district court must permit a curative amendment, unless an amendment would be inequitable or futile. Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002).
III. Discussion
In the DOC Defendants' motion to dismiss, the DOC Defendants argue that Defendants Wetzel, Ferguson, Noel, Silva, Wenhold, Steinhart, Grego, and Ranker should be dismissed for lack of personal involvement and that Davis fails to state a claim regarding his access to the courts. (Doc. 39, at 5-6). Davis states that the Defendants “had knowledge of violations of DOC policy and the constitution but were lax and acquiescence.” (Doc. 43, at 3). Further, Davis submits that the DOC Defendants obstructed his access to the courts when they destroyed his legal property that proved his innocence. (Doc. 43, at 8).
In the Correct Care Defendants' motion to dismiss, the Correct Care Defendants argue that the claims against Defendant Cowan lack personal involvement and that Davis has failed to identify a policy or custom that Defendant CCS maintained that violated Davis's constitutional rights. (Doc. 31, at 5, 9, 11). Davis states that Defendant Cowan failed to intervene against the unconstitutional conduct and acquiesced in retaliation against Davis. (Doc. 41, at 5-11). Davis asserts that the amended complaint sufficiently pleads facts that establish Defendants Cowan and CCS “had knowledge of violations of DOC policy and the constitution but acquiesced in the wrongdoing.” (Doc. 44, at 3, 7).
A. Personal Involvement
In the DOC Defendants' motion to dismiss, the DOC Defendants argue that Defendants Wetzel, Ferguson, Noel, Silva, Wenhold, Steinhart, Grego, and Ranker should be dismissed for lack of personal involvement. (Doc. 37, at 5-6). First, the DoC Defendants state that Davis impermissibly predicated his claim against Defendant Wetzel “on a theory of respondeat superior, ” and that the vague references to unidentified policies maintained by Defendant Wetzel fail to establish his personal involvement. (Doc. 39, at 7). Second, the DoC Defendants state that Davis's claim against Defendant Ferguson regarding her response to Davis's grievance appeal is not properly before the Court because this claim was dismissed with prejudice, and that Davis fails to allege how Defendant Ferguson was aware of or acquiesce any constitutional violations. (Doc. 39, at 8-10). Third, the DOC Defendants argue that Davis's claims pertaining to Defendants Noel, Silva, Wenhold, Steinhart, and Grego, should be dismissed because “Davis's vague, conclusory statements fail to establish that any of these particular Defendants were personally involved in any of the alleged constitutional violations.” (Doc. 39, at 11). Finally, the DOC Defendants argue that Davis's claims against Defendant Ranker should be dismissed because he merely alleges that Defendant Ranker was notified of the theft of Davis's property after the theft occurred and Davis has failed to allege how Defendant Ranker was personally involved, especially where, by Davis's own admission, Defendant Ranker was not involved in the decision to deny Davis insulin. (Doc. 39, at 1112). Davis states that the amended complaint “establishes the Defendant[s'] personal involvement, knowledge of and acquiescence in acts of retaliation and that a policy, practice or custom of laxity exist/is maintained within the Department of Corrections regarding wrongdoing by staff/employee[s].” (Doc. 43, at 6).
In the Correct Care Defendants' motion to dismiss, the Correct Care Defendants state that Defendant Cowan is only referenced in the case caption and that there are “no further allegations set forth by the Amended Complaint for Dr. Cowan.” (Doc. 41, at 5). Additionally, the Correct Care Defendants state that Davis makes no definitive allegations as to what custom or policy of deliberate indifference Defendant CCS maintained and that Davis fails to articulate a cognizable § 1983 claim. (Doc. 41, at 8). Davis argues that Defendant Cowan had knowledge of the constitutional violations but acquiesced in the wrongdoing. (Doc. 44, at 3). Davis also states that “the supervisor's and policymakers for Correct Care Solutions failed to act, notwithstanding being made aware of a practice that created an unreasonable risk to [Davis]'s Eighth Amendment Rights, and the supervisor's and policymakers, though aware of, were indifferent to that risk.” (Doc. 44, at 10).
The Third Circuit held that “a defendant in a civil rights action must have personal involvement in the alleged wrongs to be liable and cannot be held responsible for a constitutional violation which he or she neither participated in nor approved.” Baraka v. McGreevey, 481, F.3d 187, 210 (3d Cir. 2007) (internal citations omitted). In civil rights actions “[p]ersonal involvement can be shown through allegations of personal direction or of actual knowledge and acquiescence.” Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988). It is insufficient to assert liability against a supervisor solely due to their position. To “plead that [a Defendant is] liable in [his or her] individual capacity as a supervisor, [the Plaintiff] had to allege that she [or he] was personally involved in the constitutional violation[s]-vicarious liability is not enough.” See Phillips v. Northampton Co., P.A., 687 Fed.Appx. 129, 131 (3d Cir. 2017). “Individual defendants who are policymakers may be liable under 1983 if it is shown that such defendants, ‘with deliberate indifference to the consequences, established and maintained a policy, practice or custom which directly caused [the] constitutional harm.'” A.M. Ex rel. J.M.K. v. Luzerne Cty. Juv. Det. Ctr., 372 F.3d 572, 586 (3d Cir. 2004) (quoting Stoneking v. Bradford Area Sch. Dist., 882 F.2d 720, 725 (3d Cir. 1989)).
Monell represents an exception to the general rule that “[a] defendant in a civil rights action must have personal involvement in the alleged wrongs to be liable, and cannot be held responsible for a constitutional violation which he or she neither participated in nor approved.” Baraka v. McGreevey, 481 F.3d 187, 210 (3d Cir. 2007) (citations and quotations omitted). Under Monell, a municipality - or a private corporation contracted by the municipality - may be held liable when the execution of a policy or custom of such municipality or corporation “inflicts the injury” for which the plaintiff seeks redress. Monellv. Dept. of Soc. Serv. of City of N.Y., 436 U.S. 658, 694 (1978); see Natale v. Camden Cty. Corr. Facility, 318 F.3d 575, 584 (3d Cir. 2003).
To establish a ‘policy,' a plaintiff must show that “a decisionmaker possess[ing] final authority to establish municipal policy with respect to the action issues a final proclamation, policy or edict.” Natale, 318 F.3d at 584 (internal quotation marks omitted) (brackets in original). To establish a ‘custom,' a plaintiff must allege “an act that has not been formally approved by an appropriate decisionmaker, but that is so widespread as to have the force of law.” Natale, 318 F.3d at 584 (internal quotation marks omitted).
1. Defendant Wetzel
The DOC Defendants argue that Davis has failed to assert actions of personal involvement by Defendant Wetzel that establish his involvement in any alleged First or Eighth Amendment violations and that Davis has merely alleged a theory of respondeat superior. (Doc. 39, at 7). Davis contends that Defendant Wetzel was responsible for the acts of retaliation and failed to intervene or investigate after Davis notified Defendant Wetzel. (Doc. 43, at 5). In the amended complaint, Davis states:
Defendant Wetzel maintains a policy practice or custom regarding the supervision of the [DOC] and monitoring the acts of retaliation by his staff/employee[s], which led to [Davis] being transferred, in retaliation for filing grievances and civil actions, to the SCI Graterford, which led to, upon his arrival at the SCI Graterford, the destruction of his personal and legal property, thereby denying him access to the court[s], which led to [Davis]'s parole being canceled by virtue he was transferred on day of parole hearing.(Doc. 43, at 6).
It is well established that a municipal or federal official sued in a § 1983 action “may not be held liable for the unconstitutional conduct of their subordinates under a theory of respondeat superior.” See Iqbal, 556 U.S. at 676; Rode, 845 F.2d at 1207 (“A defendant in a civil rights action must have personal involvement in the alleged wrongs; liability cannot be predicated solely on the operation of respondeat superior.”). “Personal involvement can be shown through allegations of personal direction or of actual knowledge and acquiescence. Allegations of participation or actual knowledge and acquiescence, however, must be made with appropriate particularity.” Rode, 845 F.2d at 1207. Additionally, “individual defendants who are policymakers may be liable under 1983 if it is shown that such defendants, ‘with deliberate indifference to the consequences, established and maintained a policy, practice or custom which directly caused [the] constitutional harm.'” A.M., 372 F.3d at 586 (quoting Stoneking, 882 F.2d at725).
Here, Davis makes conclusions and assumptions about Wetzel that are not supported by any further factual allegations besides Wetzel's position as the Secretary for the Pennsylvania Department of Corrections. See Phillips, 687 Fed.Appx. at 131 (stating that “vicarious liability is not enough” to show personal involvement as required when asserting a constitutional violation). Davis does not state how Wetzel gave “personal direction or [had] actual knowledge and acquiescence” of the injuries to which he suffered. (Doc. 43, at 2); see Rode, 845 F.2d at 1207. Davis must assert “more than labels and conclusions” in order to provide claims against a defendant. See Twombly, 550 U.S. at 555. Even when construing his factual assertions as true, Davis has not sufficiently alleged that Wetzel “established a policy, practice, or custom that directly caused the harms that [Davis] allegedly endured, ” or that Wetzel was directly involved with such harms. See Phillips, 687 Fed.Appx. at 131. Mere conclusory statements are not enough to assert actual knowledge or a policy, practice, or custom. See Twombly, 550 U.S. at 555 . Davis makes vague allegations that “Defendant Wetzel maintains a policy, practice, or custom of laxity regarding the supervision of the [DOC] and monitoring acts of retaliation by his staff/employee[s.]” (Doc. 37, at 12). However, these allegations do not provide a specific policy that was signed by Defendant Wetzel regarding Davis's failure to receive insulin treatments or the theft of his property. Davis has failed to state a claim of personal involvement against Defendant Wetzel. See Phillips, 687 Fed.Appx. at 131 (finding that plaintiff failed to state a claim when he “did not plead facts sufficient to allege [defendant] established a policy, practice, or custom that directly caused the harms that [plaintiff] allegedly endured” or that the defendant “participated in, directed, or had knowledge of (and acquiesced to) any of the constitutional violations”).
The undersigned has already analyzed and dismissed significantly similar assertions made in the original complaint. (Doc. 35, at 18-20; Doc. 36, at 2). The amended complaint fails to correct these deficiencies. Therefore, it is recommended that Davis's claims against Defendant Wetzel be dismissed.
2. Defendant Ferguson
The DOC Defendants state that Davis fails to establish Defendant Ferguson's personal involvement because “it is not that Defendant Ferguson ‘refused to act,' but rather that she refused to violate [DOC] policy and permit Davis to retrieve excess property or to improperly authorize reimbursement for contraband.” (Doc. 39, at 9-10). Davis argues that Defendant Ferguson failed to question the alleged wrongdoing and acquiesced with the DOC officers' wrongdoing. (Doc. 43, at 5). In his amended complaint, Davis states that “[d]espite having authority as superintendent to intervene, Defendant Ferguson refused to act.” (Doc. 37, at 9). Davis alleges that Defendant Ferguson stated: “I am not going against my officers, [Davis]. Try to resol[v]e this with Sgt. Curran.” (Doc. 37, at 9-10). Here, Davis has alleged personal involvement on behalf of Defendant Ferguson in regard to her failure to remedy the alleged constitutional wrongs of her officers, but not as it pertains to Defendant Ferguson's response to Davis's grievances, which the Court previously dismissed with prejudice. See (Doc. 36, at 2).
Davis sufficiently alleges personal involvement as to his claims against Defendant Ferguson regarding her failure to act when he informed her multiple times about the constitutional violations of her subordinates. “[A] supervisor may be held liable for ‘having knowledge of and acquiescing in their subordinates' violations.” Powell v. Wetzel, No. 1:12-CV-01684, 2014 WL 2864686, at *3 (M.D. Pa. June 24, 2014) (quoting Cash v. Wetzel, 8 F.Supp.3d 644, 663 (E.D. Pa. Mar. 26, 2014); see also Broadwater v. Fow, 945 F.Supp.2d 574, 588 (M.D. Pa. 2013) (“Mere knowledge and acquiescence in a subordinate's constitutional violations may also qualify as personal involvement.”) (citation omitted); Argueta v. U.S. Immigr. & Customs Enf't, 643 F.3d 60, 72 (3d Cir. 2011) (“Personal involvement can be shown through allegations of personal direction or of actual knowledge and acquiescence.”) (internal quotations omitted). Davis states that he wrote a letter to Defendant Ferguson informing her that his property had been stolen and that he also had an in-person conversation with Defendant Ferguson regarding the same issue, but she failed to act stating: “I am not going against my officers.” (Doc. 37, at 9-10). Thus, Davis has sufficiently alleged that Defendant Ferguson had “knowledge of and acquiesce[ed] in [her] subordinates' violations.” See Powell, 2014 WL 2864686, at *3 (finding that when a “[p]laintiff allege[d] that he contacted [the defendant] several times and requested that he return his [property] and [the defendant] refused” the plaintiff had adequately plead an allegation of personal involvement).
Davis has failed to allege the personal involvement of Defendant Ferguson as it pertains to her failure to adequately reimburse Davis in response to his grievance. Davis states that Defendant Ferguson reimbursed him for his typewriter, but did not reimburse him for his stolen boots, the destruction of his radio, his remaining missing property, or the $197.00 he had paid to ship his items when he was transferred to the other facilities. (Doc. 37, at 11). It is established that "inmates have no constitutionally protected right to a grievance procedure.” Hakala v. Klem, No. 3:09-CV-0833, 2009 WL 3852787, at *5 (M.D. Pa. Nov. 18, 2009); see also Jones v. N.C. Prisoners' Lab. Union, Inc., 433 U.S. 119, 137-38 (1977). The right of inmates to seek investigation of their grievances is limited to their right of access to the courts. Hakala, 2009 WL 3852787, at *5. “[T]he failure to favorably address, respond to and/or investigate a grievance, as well as the denial of a grievance appeal do[es] not implicate a constitutional right.” Hakala, 2009 WL 3852787, at *5. Davis challenges Defendant Ferguson's decision to reimburse him for his typewriter and not for the other stolen property. (Doc. 37, at 11). Accordingly, Davis challenges Defendant Ferguson's “failure to favorably address [his] grievance.” See Hakala, 2009 WL 3852787, at *5; (Doc. 37, at 11). Because a prisoner does not have a constitutional right to grievance procedures, Davis has failed to state a constitutional violation, or personal involvement thereof, regarding Defendant Ferguson's decision and reimbursement of Davis's alleged stolen property. See Hakala, 2009 WL 3852787, at *5.
The undersigned has already analyzed and dismissed significantly similar assertions made in the original complaint. (Doc. 35, at 20-23; Doc. 36, at 2). The amended complaint fails to correct these deficiencies. In the amended complaint, Davis has sufficiently alleged personal involvement at the pleading stage of this litigation to state a claim against Defendant Ferguson regarding her acquiescence in her officers' actions. (Doc. 37, at 9-10). However, Davis has again failed to allege Defendant Ferguson's personal involvement or a constitutional violation as it pertains to her insufficient resolution of his grievance. Because a prisoner does not have a constitutional right to grievance procedures, it is recommended that Davis's claim pertaining to Defendant Ferguson's resolution of his grievance be dismissed with prejudice.
3. Defendants Noel, Silva, Wenhold, Steinhart, Grego, and Cowan
The DOC Defendants assert that Davis fails to establish personal involvement as to Defendants Noel, Silva, Wenhold, Steinhart, and Grego because “Davis fails to indicate whether these Defendants were in a position to ‘restore' his property, ” or “establish their personal involvement in any of the underlying unconstitutional conduct.” (Doc. 39, at 10-11). Additionally, the Correct Care Defendants argue that Defendant Cowan is only mentioned in the case caption of Davis's amended complaint and “one lone paragraph, ” which is insufficient to allege personal involvement. (Doc. 41, at 5). Davis contends that the named Defendants “had knowledge of violations of DOC policy and the constitution but were lax and acquiescence.” (Doc. 43, at 3). In his amended complaint, Davis states that the continuous acts of retaliation by Defendants Noel, Silva, Wenhold, Steinhart, Grego, and Cowan “either directly or by acquiescence for filing grievances and Civil Actions to obtain medical treatment for Hepatitis C virus, ” put Davis “in [imminent] danger of a severe heart attack, a stroke, the covid 19 virus and death.” (Doc. 37, at 6). Davis further alleges that Defendant Cowan “is [a CCS] representative . . .[, ] deals directly with Defendant Noel . . . [and] is a member of the Hepatitis C Treatment Committee and approves and den[ie]s treatment.” (Doc. 37, at 3).
Davis's allegations against Defendants Noel, Silva, Wenhold, Steinhart, Grego, and Cowan are overly broad and indistinct. It is unclear whether Defendants Noel, Silva, Wenhold, Steinhart, Grego, and Cowan had any duty to intervene due to the subjective nature of the request. Additionally, it is unclear what actions Defendants Noel, Silva, Wenhold, Steinhart, Grego, and Cowan were being asked to take or how their failure to take these actions violated Davis's constitutional rights. Thus, Davis has failed to allege any personal involvement from Defendants Noel, Silva, Wenhold, Steinhart, Grego, and Cowan because he has not alleged any actions on their part in the Proposed Complaint. (Doc. 37). See Iqbal, 556 U.S. at 676.
Additionally, Davis does not assert any particularized claims of supervisory liability within the body of his amended complaint as to Defendant Cowan. Although Davis attempts to assert supervisory liability regarding his involvement with Defendant CCS and his position as a member of the Hepatitis C Treatment Committee, these assertions are vague and do not provide any guidance as to what acts Defendant Cowan committed that allegedly violated Davis's rights or how they tie back to the alleged constitutional violations from the Proposed Complaint. (Doc. 37, at 3).
The undersigned has already analyzed and dismissed significantly similar assertions made in the original complaint. (Doc. 35, at 23-24; Doc. 36, at 2). The amended complaint fails to correct these deficiencies. Because Davis has again failed to allege personal involvement or any action attributed to Defendants Noel, Silva, Wenhold, Steinhart, Grego, and Cowan, it is recommended that the claims against them be dismissed.
4. Defendant Ranker
The DOC Defendants argue that Davis fails to allege personal involvement on the part of Defendant Ranker because Davis fails to indicate whether Defendant Ranker was in a position to “restore” Davis's property, especially since he was notified of the property issues “after the fact.” (Doc. 39, at 11). Additionally, the DOC Defendants claim that the allegations are devoid of facts asserting Defendant Ranker's knowledge or involvement in the decision to deny Davis his insulin treatments. (Doc. 39, at 12). Davis contends that Defendant Ranker “had knowledge of violations of DOC policy and the constitution, ” and acquiesced or was directly involved in the unconstitutional conduct. (Doc. 43, at 3). In the amended complaint Davis asserts multiple claims against Defendant Ranker including his failure to intervene in the theft of Davis's property, his request for Davis to refrain from using Davis's diabetic medical diagnosis and comments regarding the diagnosis in existing litigation, and his comments to nurses about pending civil suits filed against him by Davis. (Doc. 37, at 7, 13, 15).
However, none of these statements amount to a cognizable claim asserting personal involvement in a constitutional violation. Davis implies that Defendant Ranker's comments toward Defendant Cowden are connected to his failure to receive insulin injections. (Doc. 37, at 15). However, such a statement is not discernable. Davis does not indicate whether Defendant Ranker knew of his failure to receive insulin treatments or made intentional comments to prevent Davis from receiving insulin treatments.
Again, the undersigned has already analyzed and dismissed significantly similar assertions made in the original complaint. (Doc. 35, at 24-25; Doc. 36, at 2). The amended complaint fails to correct these deficiencies. Davis has failed to allege how Defendant Ranker was personally involved in any unconstitutional conduct. Therefore, it is recommended that the Court dismiss Davis's claims as they pertain to Defendant Ranker.
5. Correct Care Solutions
The Correct Care Defendants allege that Davis has failed to demonstrate that Defendant CCS “maintained a custom or policy which has led to his alleged constitutional harm.” (Doc. 41, at 8). Specifically, the Correct Care Defendants state that Davis makes no definitive allegations as to what custom or policy of deliberate indifference to Davis's diabetes or access to insulin Defendant CCS maintained. (Doc. 41, at 9). Davis counters that “the supervisor's and policymakers for [CCS] failed to act, notwithstanding being made aware of a practice that created an unreasonable risk to [Davis]'s Eighth Amendment Rights, and the supervisor's and policymakers, though aware of, were indifferent to that risk.” (Doc. 44, at 10).
It is well established that “[a] defendant in a civil rights action must have personal involvement in the alleged wrongs to be liable, and cannot be held responsible for a constitutional violation which he or she neither participated in nor approved.” Baraka, 481 F.3d at 210 (citations and quotations omitted). In Monell, the Supreme Court determined that, while municipal bodies may not be sued solely for violations perpetrated by its employees or agents, “it is when execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under § 1983.” Monell, 436 U.S. 658, 694 (1978). A private corporation contracted by a prison to provide health care for inmates cannot be held liable on a respondeat superior theory; rather, it can only be held liable for constitutional violations if it has a custom or policy exhibiting deliberate indifference to a prisoner's serious medical needs. Moore v. Wetzel, No. 1:18-CV-1523, 2019 WL 1397405, at *7 (M.D. Pa. Mar. 6, 2019), report and recommendation adopted, No. 1:18-CV-1523, 2019 WL 1383631 (M.D. Pa. Mar. 27, 2019); citing Henry v. Buskirk, 2011 U.S. Dist. LEXIS 18644 (E.D. Pa. 2011) (internal citations omitted).
Accordingly, to state a viable § 1983 claim against Defendant CCS, the amended complaint must set forth “facts to state a claim that [it] had a policy, custom, or practice, and that the policy, custom, or practice caused the constitutional violation at issue.” See Sims v. Wexford Health Sources, 635 Fed.Appx. 16, 20 (3d Cir. 2015) (quoting Natale, 318 F.3d at 583); Chimenti v. Pa. Dep't of Corr., No. 15-CV-3333, 2017 WL 3394605, at *11 (E.D. Pa. Aug. 8, 2017) (same); see also Park v. Veasie, 720 F.Supp.2d 658, 667 (M.D. Pa. 2010) (“To establish liability under Monell, a plaintiff must identify the challenged policy, attribute it to the [policymaker] itself, and show a causal link between the execution of the policy and the injury suffered.”) (citing Losch v. Borough of Parkesburg, 736 F.2d 903, 910 (3d Cir. 1984)). The municipal policy or custom must either be unconstitutional itself or be the “moving force” behind the constitutional deprivation. Thomas v. Cumberland Cty., 749 F.3d 217, 222 (3d Cir. 2014) (citation omitted). Causation can be established either by demonstrating that the policy or custom is facially unconstitutional or “by demonstrating that the municipal action was taken with deliberate indifference as to its known or obvious consequences.” Berg v. Cty. of Allegheny, 219 F.3d 261, 276 (3d Cir. 2000).
In the amended complaint, Davis alleges that Defendant CCS “fail[ed] to establish and implement a policy of monitoring their employee's performance with inmate patients to ensure that patients undergoing treatment by their employee[s] are not mistreated or retaliated against for filing grievances and making complaints against them, staff or co-workers.” (Doc. 37, at 16). Thus, Davis asserts that “[d]ue to a lack of any such policy, [Davis] was placed at risk of having a heart attack, stroke, kidney dysfunction, blindness, amputation, cardiovascular disease, going into a coma, or death.” (Doc. 37, at 16). Such an allegation is insufficient to demonstrate a policy or custom. To establish a ‘policy,' a plaintiff must show that “a decisionmaker possess[ing] final authority to establish municipal policy with respect to the action issues a final proclamation, policy or edict.” Natale, 318 F.3d at 584 (quotation omitted). Davis has not provided facts regarding any type of decision-making process or “a final proclamation” of the policy he alleges. See Natale, 318 F.3d at 584. To establish a ‘custom,' a plaintiff must allege “an act that has not been formally approved by an appropriate decisionmaker, but that is so widespread as to have the force of law.” Natale, 318 F.3d at 584 (quotation omitted). Davis attempts to allege a custom employed by Defendant CCS; however, he fails to provide any facts regarding the widespread nature of his accusations. Additionally, Davis makes generalized statements that Defendant CCS's “policies, practices and customs and lack thereof violated [Davis]'s First and Eighth Amendment Rights.” (Doc. 37, at 16). However, Davis fails to allege, beyond mere conclusory statements of acquiescence to staff conduct, how Defendant CCS maintained or failed to maintain a policy or custom contrary to Davis's constitutional rights. (Doc. 37, at 16).
In addition, Davis has not alleged an official policy, nor has he sufficiently alleged acts by Defendant CCS that are violative of federal law. An entity acting under color of state law may be held liable when (1) a generally applicable policy is announced and the complained of act is an implementation of that policy, (2) no policy has been announced, but federal law has been violated by an act of the policymaker itself, or (3) when no affirmative act has occurred and the need to act “is so obvious, and the inadequacy of existing practice so likely to result in the violation of constitutional rights, that the policymaker can reasonably be said to have been deliberately indifferent to the need.” Natale, 318 F.3d at 584. Therefore, the Court turns to whether Davis has sufficiently alleged actions “so obvious” that Defendant CCS “can reasonably be said to have been deliberately indifferent to [his] need[s].” See Natale, 318 F.3d at 584.
Here, Davis alleges that Defendant CCS failed to intervene in the alleged retaliatory conduct and adopts its employers' and employees' practices and executes them as its own. (Doc. 37, at 15-16). This allegation is overbroad as it encompasses every policy of Defendant CCS's employers and employees and vague as it does not point to any particular policy that Defendant CCS implemented, or should have implemented, that violated Davis's rights.
The undersigned has already analyzed and dismissed significantly similar assertions made in the original complaint. (Doc. 35, at 25-28; Doc. 36, at 2). The amended complaint fails to correct these deficiencies. Davis has again failed to plead facts that demonstrate a link between any Defendant CCS policy and the injuries that he sustained. See Robinson v. Fair Acres Geriatric Ctr., 722 Fed.Appx. 194, 199 (3d Cir. 2018). Therefore, it is recommended that Davis's claims as to Defendant CCS be dismissed.
B. Access to Courts
The DOC Defendants submit that Davis's access to courts claim should be dismissed because he has failed to “present facts to indicate that he lost the ability to litigate his claims, in order to establish he suffered an actual injury.” (Doc. 39, at 12-14). Davis responds that “[l]iberally construed, [Davis]'s amended complaint states that [Davis] is pro se, and that he had legal property that proves his innocence destroyed by the Defendant[s] which denied him access to the court.” (Doc. 43, at 8).
Prisoners maintain a “fundamental constitutional right of access to the courts, ” embodied in the First and Fourteenth Amendments. Lewis v. Casey, 518 U.s. 343, 346 (1996) (quoting Bounds v. Smith, 430 U.S. 817, 828 (1977)). Where a prisoner asserts that the defendants' actions have inhibited his opportunity to present a past legal claim, he must show (1) he suffered an actual injury-that is, that he lost a chance to pursue a “nonfrivolous” or “arguable” underlying claim because of the alleged interference; and (2) he has no other “remedy that may be awarded as recompense” for the lost claim other than in the present denial-of-access suit. Christopher v. Harbury, 536 U.S. 403, 415 (2002); see also Monroe v. Beard, 536 F.3d 198, 205 (3d Cir. 2008). However, if “an inmate does not allege an actual injury to his ability to litigate a claim, his constitutional right of access to the courts has not been violated.” Caldwell v. Beard, 305 Fed.Appx. 1, 3 (3d Cir. 2008) (not precedential). Thus, a prisoner-plaintiff need not allege that the violation resulted from a “pattern and practice” or explicit policy but must assert an actual injury. See Williams, No. 1:13-CV-00849, 2015 WL 4729438, at *4 (M.D. Pa. Aug. 10, 2015). “An actual injury occurs when the prisoner is prevented from or has lost the opportunity to pursue a ‘nonfrivolous' and ‘arguable' claim.” Garcia v. Dechan, 384 Fed.Appx. 94, 95 (3d. Cir. 2010) (quoting Christopher, 536 U.S. at 415; see also Njos v. Argueta, Civ. Action No. 3:12-CV-1038, 2015 WL 5569107, at *3 (M.D. Pa. Sep. 22, 2015) (“To [allege an actual injury], a plaintiff must show that the actions of the prison officials hindered the prisoner's efforts to pursue a nonfrivolous claim. (citing Monroe, 536 F.3d at 205)). Specifically, “[t]he complaint must describe the underlying arguable claim well enough to show that it is ‘more than mere hope,' and it must describe the ‘lost remedy.'” Monroe, 536 F.3d at 205-06 (quoting Christopher, 536 U.S. at 416).
Davis has sufficiently asserted an actual injury at this stage of the proceedings. “The confiscation or destruction of a prisoner's legal papers has been found to violate a prisoner's right of access to the courts.” Brown v. Smith, Civ. Action No. 3:12-CV-00446, 2014 WL 3893824, at *2 (M.D. Pa. Aug. 7, 2014) (citing Heller v. Keenhold, No. 1:04-CV-1893, 2006 WL 759647, at *4 (M.D. Pa. Mar. 24, 2006) (citing cases)). In the amended complaint, Davis states that the DOC Defendants' retaliation led to the destruction of Davis's personal and legal property, which led to Davis “losing a legal dispute due to the looted and destroyed legal property that precludes establishing his innocence, ” “thereby denying him access to the court[s], which led to [Davis]'s parole being canceled by virtue he was transferred on day of parole hearing.” (Doc. 37, at 11-12). Davis also argues that he was unable to procure counsel to present a Post-Conviction Relief Act (“PCRA”) petition. (Doc. 43, at 8).
Liberally construing Davis's amended complaint, the Court interprets his claim to be that when Defendants allegedly stole Davis's legal property, it included newly discovered evidence that required the assistance of counsel to introduce the evidence in a PCRA petition. (Doc. 37, at 11-12). In his amended complaint, Davis alleges that he lost a legal dispute due to Defendants' alleged theft, which the Court interprets to be the criminal case to which Davis refers in his brief in opposition. (Doc. 37, at 11). Because Davis could not obtain counsel to present his claim because the evidence suggesting the veracity of that claim was no longer in his possession, he lost the opportunity to present his case and consequently lost his legal dispute. (Doc. 43, at 8). Therefore, Davis has sufficiently alleged that he suffered actual injury in asserting that he lost the opportunity to pursue an arguable claim of innocence with the assistance of newly discovered evidence. See Brown, 2014 WL 3893824, at *2 (finding that a plaintiff sufficiently stated an access to courts claim when he alleged that documents were confiscated by prison officials that were needed to assist the plaintiff's counsel in the filing of a PCRA petition); see also Heller, 2006 WL 759647, at *4 (documents that were taken during the transfer of a plaintiff to another prison were important in defending a pending criminal appeal and the complaint that reflected their seizure and the hindrance to the plaintiff's ability to present a defense in a pending criminal matter “stated a substantive due process claim” of the denial of access to the courts at the dismissal stage of litigation) (examining Zilich v. Lucht, 981 F.2d 694, 694-96 (3d Cir. 1992)).
C. Leave to Amend
The Third Circuit has instructed that if a complaint is vulnerable to dismissal for failure to state a claim, the district court must permit a curative amendment, unless an amendment would be inequitable or futile. Grayson, 293 F.3d at 108. The Third Circuit has also acknowledged that a district court has “substantial leeway in deciding whether to grant leave to amend.” Lake v. Arnold, 232 F.3d 360, 373 (3d Cir. 2000); see also Ruffin v. Mooney, No. 3:16-CV-1987, 2017 WL 3390361, at *2 (M.D. Pa. Jan. 31, 2017) (dismissing prisoner-plaintiff's case without prejudice where it was unclear whether he was seeking relief under § 1983 or a habeas statute).
As the amended complaint does not set forth the proper factual allegations connected to First and Eighth Amendment legal claims against Defendants Wetzel, Noel, Silva, Wenhold, Steinhart, Grego, Cowan, Ranker, CCS, and Ferguson, dismissal is warranted. (Doc. 37). However, out of an abundance of caution, and to preserve Davis's rights as a pro se litigant, the Court will allow him to file an amended complaint regarding the claims against Defendants Wetzel, Noel, Silva, Wenhold, Steinhart, Grego, Cowan, Ranker, CCS, and Ferguson, specifically alleging their personal involvement in the violation of Davis's constitutional rights. The second amended complaint must fully allege every claim Davis wishes to pursue and be a pleading that stands by itself without reference to the original complaint or amended complaint. See Young v. Keohane, 809 F.Supp. 1185, 1198 (M.D. Pa. 1992). However, the second amended complaint should not assert claims pertaining to Defendant Ferguson's resolution of his grievance, as the undersigned recommends that such claim be dismissed with prejudice. Failure to file a second amended complaint in accordance with the aforementioned requirements may result in the dismissal of this action in its entirety.
IV. Conclusion
Based on the foregoing, it is respectfully recommended that the DOC Defendants' motion to dismiss (Doc. 38) be DENIED IN PART and GRANTED IN PART, and that the Correct Care Defendants' motion to dismiss (Doc. 40) be DENIED IN PART and GRANTED IN PART. It is further recommended that Davis be granted leave to file a second amended complaint as it pertains to the issues of personal involvement of Defendants Wetzel, Noel, Silva, Wenhold, Steinhart, Grego, Ferguson, Cowan, Ranker, and CCS. As noted above, that second amended complaint should fully allege every claim Davis wishes to pursue, fully consider this report and recommendation, as adopted or modified by the District Court, and be a pleading that stands by itself without reference to the original or amended complaints previously filed in this matter.
NOTICE
NOTICE IS HEREBY GIVEN that the undersigned has entered the foregoing Report and Recommendation dated March 3, 2022. Any party may obtain a review of the Report and Recommendation pursuant to Rule 72.3, which provides:
Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636(b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses or recommit the matter to the magistrate judge with instructions. 27