Opinion
Case No. 1:19-cv-44 Erie
06-11-2019
ASHLEY MOWERY, Plaintiff v. JOHN WETZEL AND LONNIE OLIVER, Defendants
SUSAN PARADISE BAXTER UNITED STATES DISTRICT JUDGE REPORT AND RECOMMENDATION DISMISSING THIS ACTION PURSUANT TO 28 U.S.C. § 1915 I. Recommendation
It is hereby recommended that the motion for leave to proceed in forma pauperis [ECF No. 1] be GRANTED.
It is further recommended that this action be dismissed as legally frivolous in accordance with 28 U.S.C. § 1915(e). The Clerk of Courts should be directed to close this case. II. Report
A. Plaintiff's motion for leave to proceed in forma pauperis
Plaintiff Ashley Mowery, an inmate in the custody of the Pennsylvania Department of Corrections, initiated this pro se civil rights action by filing a motion for leave to proceed in forma pauperis. In her motion, Plaintiff states that she is unable to pay the filing fee associated with this case. Based upon this averment and a review of her in forma pauperis application, the undersigned concludes that Plaintiff is without sufficient funds to pay the costs and fees of the proceedings. Accordingly, her motion for leave to proceed in forma pauperis should be granted.
B. Assessment of Plaintiff's Complaint
Having been granted leave to proceed in forma pauperis, Plaintiff is subject to the screening provisions in 28 U.S.C. § 1915(e). Among other things, that statute requires the Court to dismiss any action in which subject matter jurisdiction is lacking and/or the plaintiff has failed to state a claim upon which relief may be granted. See Muchler v. Greenwald, 624 Fed. Appx. 794, 796-97 (3d Cir. 2015).
Because Plaintiff is proceeding pro se, her allegations, "however inartfully pleaded," must be held to "less stringent standards than formal pleadings drafted by lawyers." Haines v. Kerner, 404 U.S. 519, 520-521 (1972). Moreover, under the liberal pleading rules, during the initial stages of litigation, a district court should construe all allegations in a complaint in favor of the complainant. Gibbs v. Roman, 116 F.3d 83 (3d Cir. 1997).
In her proposed complaint, Plaintiff asserted that various individuals, most of whom appear to be medical personnel at SCI-Cambridge Springs, violated her civil rights by displaying deliberate indifference to a serious medical need in violation of the Eighth Amendment. See ECF No. 1-3. However, she named only two individuals as Defendants: John Wetzel, the Secretary of the Department of Corrections, and Lonnie Oliver, the Superintendent at SCI-Cambridge Springs. Id. No conduct of any sort was attributed to either of these individuals in the body of Plaintiff's complaint. Consequently, the Court issued an order on March 4, 2019, informing Plaintiff that her claims against Wetzel and Oliver were subject to dismissal based on her failure to plead their personal involvement in the alleged constitutional violations. ECF No. 3; Gould v. Wetzel, 2013 WL 5697866, at *2 (3d Cir. Oct. 21, 2013) (noting that liability under § 1983 requires a defendant's "personal involvement" in the deprivation of a constitutional right). Rather than dismiss her complaint, the Court offered Plaintiff an opportunity to amend her pleading to either: (1) explain how the named Defendants, Wetzel and Oliver, were personally responsible for the inadequacy of her medical care; or (2) properly name as Defendants the individuals actually responsible for the alleged constitutional violations. Id. When Plaintiff failed to submit an amended complaint within the specified time period, the Court issued an order directing her to show cause for her failure to file an amended complaint or otherwise prosecute her case. ECF No. 6.
In response, Plaintiff elected to stand by her allegations against Wetzel and Oliver as presented in the original complaint. Plaintiff explained:
Please let it be noted on the record that the two named defendants John Wetzel and Lonnie Oliver are the head, in addition run this institution where I have received [negligent] medical care [therefore] they are the one's responsible for the occurances (sic) at this facility. The defendants oversee all operations at SCI Cambridge Springs. It has been brought to their attention a multitude of times (via grievances) though - still - nothing was done. Therefore they are the ones I am taking action against.ECF No. 8.
Based upon this explanation and the allegations in her complaint, it is apparent that Plaintiff is attempting to hold Wetzel and Oliver responsible for the alleged deficiencies in her medical care based entirely upon their supervisory roles in the prison system and their responses to grievances. It is axiomatic, however, that Section 1983 liability cannot be predicated solely on the theory of respondeat superior. See, e.g., Rizzo v. Goode, 423 U.S. 362 (1976); Robinson v. City of Pittsburgh, 120 F.3d 1286, 1293-95 (3d Cir. 1997). Rather, "each Government official, his or her title notwithstanding, is only liable for his or her own misconduct." Ashcroft v. Iqbal, 556 U.S. 662, 677 (2009); Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1998) (noting that liability for supervisory officials must still be based on "personal involvement in the alleged wrongs"). Although a supervisor cannot encourage constitutional violations, "a supervising public official has [no] affirmative constitutional duty to supervise and discipline so as to prevent violations of constitutional rights by his or her subordinates." Chinchello v. Fenton, 805 F.2d 126, 133 (3d Cir. 1986); Brown v. Grabowski, 922 F.2d 1097, 1120 (3d Cir. 1990). Nor is the filing of a grievance "sufficient to show the actual knowledge necessary for a defendant to be found personally involved in the alleged unlawful conduct." Mearin v. Swartz, 951 F.Supp.2d 776, 782 (W.D. Pa. 2013). See also Mincy v. Chmielsewski, 508 Fed. Appx. 99, 104 (3d Cir. 2013) ("[A]n officer's review of, or failure to investigate, an inmate's grievances generally does not satisfy the requisite personal involvement.").
Based on the foregoing, Plaintiff's claims against Wetzel and Oliver must be dismissed. Her complaint does not include a single factual allegation directed at either Defendant, and her show cause response makes clear that her claims against Wetzel and Oliver are based entirely upon their supervisory roles within the DOC and/or their participation in the grievance process. Courts have routinely dismissed such allegations for lack of personal involvement. See, e.g., Kloss v. SCI-Albion, 2018 WL 4609144, at *4 (W.D. Pa. Aug. 15, 2018) (allegation that supervisory defendant was "made aware of several issues of the plaintiff's and . . . failed to help him" is insufficient to state a claim for relief); Beale v. Wetzel, 2015 WL 2449622, at *5 (W.D. Pa. May 21, 2015) (dismissing claims against senior prison officials because the only allegations against them arose in the context of their participation in an administrative appeal process); Mearin, 951 F.Supp. 2d at 782 (same); Rogers v. United States, 696 F.Supp.2d 472, 488 (W.D. Pa. 2010) ("If a grievance official's only involvement is investigating and/or ruling on an inmate's grievance after the incident giving rise to the grievance has already occurred, there is no personal involvement on the part of that official."). The same result is warranted here. III. Leave to amend
The Third Circuit has instructed that if a civil rights complaint is vulnerable to dismissal for failure to state a claim, the Court should 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). However, the court "need not provide endless opportunities for amendment, especially where such opportunity already has been enjoyed." Baker v. Moon Area Sch. Dist., 2018 WL 40571719, at *8 (W.D. Pa. Aug. 27, 2018) (quoting Taylor v. Pilewski, 2008 WL 4861446, at *3 (W.D. Pa. Nov. 7, 2008)). In the instant case, Plaintiff has already been offered an opportunity to amend her complaint and, rather than do so, elected to stand by the allegations of her original pleading. Given the deficiencies identified in this Report and the Court's prior order, another attempt at amendment would be plainly futile. IV. Conclusion
For the foregoing reasons, it is respectfully recommended that that the motion for leave to proceed in forma pauperis [ECF No. 1] be GRANTED.
It is further recommended that this action be dismissed as legally frivolous in accordance with 28 U.S.C. § 1915(e). The Clerk of Courts should be directed to close this case. V. Notice
In accordance with 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P. 72, the parties may seek review by the district court by filing Objections to the Report and Recommendation within fourteen (14) days of the filing of this Report and Recommendation. Any party opposing the objections shall have fourteen (14) days from the date of service of Objections to respond thereto. See Fed. R. Civ. P. 72(b)(2). Failure to file timely objections may constitute a waiver of appellate rights. See Brightwell v. Lehman, 637 F.3d 187, 194 n.7 (3d Cir. 2011); Nara v. Frank, 488 F.3d 187 (3d Cir. 2007).
/s/ Richard A. Lanzillo
RICHARD A. LANZILLO
United States Magistrate Judge Dated: June 11, 2019