Opinion
Civil Action 3:20-CV-01829
12-20-2021
DESHAWN DRUMGO, SR., Plaintiff, v. SERGEANT FUNK, et al., Defendants.
BRANN, J.
REPORT AND RECOMMENDATION
KAROLINE MEHALCHICK CHIEF UNITED STATES MAGISTRATE JUDGE
This is a civil rights action initiated upon the filing of a complaint by pro se Plaintiff Deshawn Drumgo, Sr. ('Drumgo') on September 24, 2020. (Doc. 1). In his Complaint, Drumgo asserts claims under 42 U.S.C. § 1983 for denial of access to the courts, harassment, retaliation, deprivation of property, denial of basic necessities, and due process violations. (Doc. 1; Doc. 4; Doc. 5; Doc. 18). Now pending before the Court is a motion to dismiss the amended complaint filed by Defendants Deborah Alvord, Bainey, Bare, Berfield, Cline, Digby, Funk, Gilbert, Laurel Harry, Tonay Heist, Hoenung, Horner, Hubeter, James, Lowe, Maul, McBeth, McGee, Mihal, Ritchey, Rivera, Roth, Schnek, Yox, and Zobitine (hereinafter, collectively known as 'Defendants'). (Doc. 31). For the reasons stated herein, it is recommended that the Motion to Dismiss be DENIED. (Doc. 31)
I. Background and Procedural History
Drumgo filed the original complaint in this matter on September 24, 2020, in the Eastern District of Pennsylvania alleging a violation of his constitutional rights pursuant to 42 U.S.C. § 1983. (Doc. 1). Along with his complaint, Drumgo filed a motion for a temporary restraining order and two accompanying letters. (Doc. 2; Doc. 3; Doc. 4). On October 2, 2020, the Eastern District transferred the pending matter to this Court. (Doc. 6). Plaintiff then filed two separate motions to proceed in forma pauperis and one prisoner trust fund account statement, which the Court granted on March 17, 2021. (Doc. 11; Doc. 14; Doc. 15; Doc. 22). On March 17, 2021, the undersigned recommended that the Court denied Drumgo's temporary restraining order, and the District Court Judge affirmed the denial on May 20, 2021. (Doc. 23; Doc. 32). Drumgo filed a motion for reconsideration regarding the temporary restraining order on June 4, 2021, which the District Court Judge denied on June 10, 2021. (Doc. 35; Doc. 37).
The Court construes the two letters as being a component of Plaintiff's complaint. (Doc. 4; Doc. 5).
In his complaint, Drumgo alleges that he was deprived of basic necessities and access to the courts and suffered from harassment and retaliation. (Doc. 4, at 3-8). Drumgo seeks a temporary restraining order, the return or replacement of his property, nominal damages, compensatory damages, liens for his property, the termination of defendants from their positions, counseling from an outside therapist, compensation for lost wages, and an end to the harassment and retaliation from which he suffers. (Doc. 4, at 1).
Defendants filed the instant motion to dismiss on May 18, 2021. (Doc. 31). Defendants argue that Drumgo's complaint should be dismissed because he fails to adequately allege an access to courts claim and because his other claims are not related by a common set of facts or question of law. (Doc. 34, at 3). The motion to dismiss as been fully briefed and is ripe for disposition. (Doc. 31; Doc. 33; Doc. 34).
Drumgo filed his brief in opposition before Defendants filed their brief in support of the motion to dismiss. (Doc. 33; Doc. 34). The time for briefing has passed and Drumgo has failed to file a subsequent brief responding to Defendants' arguments in their brief in support. As such, the Court will interpret the motion to dismiss as being opposed by Drumgo.
II. Motion to Dismiss Standard
Defendants seek to dismiss the complaint under Rule 12(b)(6) of the Federal Rules of Civil Procedure. (Doc. 31; Doc. 34). Rule 12(b)(6) 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)). The court also need not assume that a plaintiff can prove facts that the plaintiff has not alleged. Associated Gen. Contractors of Cal. v. Cal. St. 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 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 at 224, 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 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). Nonetheless, pro se plaintiffs are still subject to the basis pleading requirements of Rule 8. Rhett v. N.J. St. Super. Ct., 260 Fed.Appx. 513, 515 (3d Cir. 2008). The Third Circuit has further 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 St. Hosp., 293 F.3d 103, 108 (3d Cir. 2002).
III. Discussion
Defendants submit two grounds for dismissal pursuant to Rule 12(b)(6). (Doc. 31; Doc. 34). First, they assert that Drumgo's access to courts claim against Rivera and Lopez should be dismissed as Drumgo has failed to allege that he suffered an actual injury. (Doc. 34, at 3). Second, Defendants allege that Drumgo's remaining claims should be dismissed as there is no common set of facts or questions of law between the remaining claims and Drumgo's access to courts claim. (Doc. 34, at 3).
A. Access to Courts
Defendants assert that Drumgo does not satisfy the pleading requirements necessary to state a claim of denial of access to the courts. (Doc. 34, at 5-6). Drumgo fails to assert 'any facts' demonstrating an actual injury due to Defendant Rivera and Defendant Lopez's conduct, according to Defendants. (Doc. 34, at 6). Defendants state that Drumgo does not 'allege any facts showing that he suffered some adverse decision in a non-frivolous case' beyond mere 'conclusory allegations.' (Doc. 34, at 6). Drumgo alleges that Defendant Rivera and Defendant Lopez deprived him of boxes of legal materials. (Doc. 4, at 2). Drumgo states that eight months after his transfer, he was given one of his three boxes of legal materials and that this withholding 'denied [him] adequate access to the courts.' (Doc. 4, at 2-3). Drumgo argues that Defendant Rivera and Defendant Lopez's actions impeded his ability to file a motion for actual innocence and litigate his pending civil suits. (Doc. 4, at 3).
In his complaint, Drumgo raises the 'fundamental constitutional right of access to the courts' that is 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 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 F. App'x. 1, 3 (3d Cir. 2008) (not precedential). Thus, Drumgo must allege an actual injury by identifying a nonfrivolous claim which was lost due to the denial of access to the courts. See Monroe, 536 F.3d at 205. Actual injury occurs when the denial of court access 'hinder[s] [the inmate's] efforts to pursue a legal claim.' Casey, 518 U.S. at 351.
Drumgo 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, No. 3: 12-CV-00446, 2014 WL 3893824, at *2 (M.D. Pa. Aug. 7, 2014) (citing Heller v. Keenhold, No. Civ.A.1: 04-CV-1893, 2006 WL 759647, at *4 (citing cases)). Drumgo states that his three boxes of legal materials were withheld and that he was eventually only given one of his three boxes. (Doc. 4, at 2-3). Drumgo also states that he was unable to file a motion for actual innocence and litigate his pending civil suits, including failing to meet a deadline in the Third Circuit Court of Appeals for Philadelphia, due to Defendant Rivera and Defendant Lopez's actions when they withheld his boxes of legal materials. (Doc. 4, at 2-3; Doc. 5, at 1). Therefore, Drumgo has alleged that he suffered actual injury in asserting that he lost the opportunity to pursue an arguable claim of innocence or prosecute his pending civil lawsuits. See 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)).
B. Rule 20 Joinder
In their motion to dismiss, Defendants argue that Drumgo's amended complaint fails to comply with Rule 20 of the Federal Rules of Civil Procedure. (Doc. 34, at 6-7). Specifically, Defendants state that Drumgo's claims of harassment, retaliation, deprivation of property, denial of due process, and deprivation of basic necessities do not 'arise out of the same transaction or occurrence and presen[t] a common question of law or fact.' (Doc. 34, at 3, 6). Additionally, Defendants claim that Drumgo's 'attemp[t] to tie the claims together by alleging a theory of retaliation and harassment' is insufficient. (Doc. 34, at 7).
Rule 20 provides, in relevant part:
(2) Defendants. Persons . . . may be joined in one action as defendants if:
(A) any right to relief is asserted against them jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences; and
(B) any question of law or fact common to all defendants will arise in the action.Fed. R. Civ. P. 20(a)(2).
'Rule 20(a) imposes two specific requirements for the permissive joinder of defendants: (1) a right to relief must be asserted by the plaintiff against each defendant relating to or arising out of the same transaction or series of transactions; and (2) some common question of law or fact must be present with respect to all parties in the action (i.e. a common thread).' Intercon Res. Assocs., v. Dresser Indus., 696 F.2d 53, 57 (7th Cir. 1982). '[T]here must be at least one common claim against all named Defendants.' Gorbey v. Chambers, No. 3: 20-CV-806, 2020 WL 2574651, at *2 (M.D. Pa. May 21, 2020). 'Courts have broad discretion in applying Rule 20 to reduce inconvenience, delay, and added expense to the parties and to the court, and to promote judicial economy.' Scullen v. Mahally, No. 3:CV-16-0965, 2016 WL 3522966, at *2 (M.D. Pa. June 28, 2016). Further, '[w]hile the requirements of Rule 20(a) are to be liberally construed in the interest of convenience and judicial economy, the policy of liberal application of Rule 20 is not a license to join unrelated claims and defendants in one lawsuit.' Washington v. Folino, No. CIV.A. 11-1046, 2013 WL 998013, at *3 (W.D. Pa. Feb. 28, 2013), report and recommendation adopted, Washington v. Folino, Civ. Action No. 11-1046, 2013 WL 980608 (W.D. Pa. Mar. 13, 2013).
Where a prisoner brings suit while proceeding in forma pauperis, Rule 20 takes on additional importance in light of the Prison Litigation Reform Act of 1995 ('PLRA'). Folino, 2013 WL 998013, at *3 n.1. Specifically, the PLRA requires that prisoner-plaintiffs must ultimately pay the full filing fee for a lawsuit, and provides that a prisoner may be barred from proceeding in forma pauperis if that prisoner previously brought three or more actions in forma pauperis while incarcerated that were dismissed as frivolous, malicious, or for the failure to state a claim. 28 U.S.C. §§ 1915(b), (g). Accordingly, a prisoner-plaintiff who is permitted to combine separate, independent claims into one complaint is able to circumvent the PLRA's filing fee requirements and potential 'three strikes' limitation. Folino, 2013 WL 998013, at *3 n.1; cf. Carter v. Bank of Am., N.A., No. 1: 11CV326, 2012 WL 2090530, at *2 (W.D. N.C. June 11, 2012) ('[T]he filing of a single lawsuit containing what are, in fact, separate lawsuits creates inaccurate filing statistics for this District, which could impact the resources allocated to the District.')
In Sanders v. Rose, the plaintiff outlined different claims pertaining to incidents that occurred in prison, a retaliatory act due to his complaints about his treatment, and insufficient grievance procedures. 576 Fed.Appx. 91, 95 (3d Cir. 2014). All of these events appeared to arise out of the single event of the plaintiff being denied access to the prison library and signing his name as 'Mickey Mouse.' Sanders, 576 F. App'x, at 95. The Third Circuit Court of Appeals held that the connectivity of the facts could have been sufficient to satisfy Rule 20. Sanders, 576 Fed.Appx. at 95. In Folino, the Western District of Pennsylvania held that the plaintiff's claims were 'inappropriate for joinder under Rule 20' where he alleged that his claims were connected through an overarching theme of retaliation. 2013 WL 980608, at *1. The Court noted that the plaintiff's 'overarching theme of retaliation, or a retaliatory conspiracy, [was] insufficient to provide a basis to join unrelated transactions and defendants.' Folino, 2013 WL 980608, at *1. Additionally, the Court found that the plaintiff failed to sufficiently allege a retaliatory conspiracy claim as his assertions were based on conclusory statements. Folino, 2013 WL 980608, at *1.
Plaintiff alleged that he was denied access to the prison library, signed his name as 'Mickey Mouse' to evidence his discontent, was beaten by officers while they sang the 'Mickey Mouse' song, was charged with fraudulent misconduct due to his signature, had his mail confiscated in retaliation for his complaint about his treatment, and was provided inadequate grievance procedures. Sanders, 576 F. App'x, at 95.
Defendants submit that 'Plaintiff purports to assert a variety of different claims against over 20 additional defendants . . . [with] no factual or legal connection between these other claims and Plaintiff's access to courts claim.' (Doc. 34, at 6-7). Drumgo divides his complaint into numbered paragraphs wherein he alleges different instances of allegedly retaliatory conduct. (Doc. 4, at 2-8; Doc. 5, at 1-6; Doc. 18, 1-4). Drumgo's allegations appear to be connected by an overarching theme of retaliation due to his involvement in the inmate uprising that occurred at the James T. Vaughn Correctional Center, located in Smyrna, Delaware, ('Vaughn Uprising') which resulted in the death of an officer and Drumgo's transfer to State Correctional Institution at Camp Hill. (Doc. 4, at 2-6; Doc. 5, at 3-4; Doc. 18, at 3-4). Drumgo complains of retaliation for his filings of grievances in connection to the retaliatory conduct for his involvement in the Vaught Uprising. (Doc. 4, at 4-8; Doc. 5, at 2-6; Doc. 18, at 1-4). In his access to courts claim, Drumgo states that Defendant Rivera inquired about Drumgo's involvement in the Vaughn Uprising and then Drumgo did not receive his 'legal work' for eight months. (Doc. 4, at 3).
Like the plaintiff's claims in Sanders, Drumgo's claims arise out of the same singular incident. Drumgo alleges that his claims arise out of retaliation for his involvement in the Vaughn Uprising. (Doc. 4, at 2-6; Doc. 5, at 3-4; Doc. 18, at 3-4); see 576 F. App'x, at 95. Drumgo states that the retaliation against him 'continues as if he was convicted' of murdering the officer during the Vaughn Uprising. (Doc. 4, at 2). Throughout his complaint, Drumgo mentions being called a 'murderer' and 'killer' in conjunction with retaliatory conduct by Defendants. (Doc. 4, at 4; Doc. 5, at 3-4, Doc. 18, at 4). Drumgo's claims stem from a variety of individuals and include grievance filings and incidents related to alleged retaliatory conduct from the Defendants for Drumgo's involvement in the Vaughn Uprising. (Doc. 4, at 2-6; Doc. 5, at 3-4; Doc. 18, at 3-4). Additionally, Drumgo's allegations are not merely conclusory as they allege specific incidents wherein Defendants reference the Vaughn Uprising. (Doc. 4, at 4; Doc. 5, at 3-4, Doc. 18, at 4); cf. Folino, 2013 WL 980608, at *1. As such, the separate events and claims found within the complaint are all centered around retaliation for Drumgo's involvement in the Vaughn Uprising and are sufficiently connected to satisfy Rule 20. See Fed.R.Civ.P. 20(a)(2); see also Sanders, 576 F. App'x, at 95.
IV. Recommendation
Based on the foregoing, it is respectfully recommended that Defendants' Motion to Dismiss be DENIED. (Doc. 31).
NOTICE
NOTICE IS HEREBY GIVEN that the undersigned has entered the foregoing Report and Recommendation dated December 20, 2021. 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. 14