Opinion
2:22-cv-928
11-28-2022
MACKENNETH ORTIZ, Plaintiff v. LEE ESTOCK, et al., Defendants.
REPORT AND RECOMMENDATION
PATRICIA L. DODGE, United States Magistrate Judge.
I. Recommendation
It is respectfully recommended that the motion to dismiss filed by Defendants Lee Estock and Deputy Superintendent Yingling (ECF No. 9) be granted without prejudice and with leave to amend. It is further recommended that the motion to dismiss or, in the alternative, for summary judgment, filed by Defendant Wellpath (ECF No. 24) be granted without prejudice and with leave to amend.
II. Report
Plaintiff MacKenneth Ortiz, who is a state prisoner incarcerated at the State Correctional Institution at Houtzdale, Pennsylvania (“SCI Houtzdale”), contends that he was transferred from SCI Pine Grove to SCI Houtzdale in retaliation for two lawsuits he commenced in state court against various Department of Corrections (“DOC”) personnel. He also alleges that his personal property, including legal documents, was stolen in an attempt to delay his cases. Plaintiff names as defendants Lee Estock, the Warden of SCI Pine Grove and Deputy Superintendent Yingling (together, the “DOC Defendants”), as well as Wellpath,a medical provider. 1
Plaintiff refers to this Defendant as “SCI P.N.G. Medical Dept. Admin. (Wellpath).” Defendant indicates that it is properly identified as Wellpath.
Presently pending are a motion to dismiss filed by the DOC Defendants and a motion to dismiss or for summary judgment filed by Wellpath. For the reasons that follow, both motions should be granted, but without prejudice and with leave to amend.
A. Procedural History
Plaintiff filed this pro se civil rights case in the Court of Common Pleas of Indiana County in April 2021. On June 23, 2022, Wellpath removed the action to this Court on the basis of the federal questions presented by Plaintiff's civil rights claims pursuant to 42 U.S.C. § 1983.
Plaintiff did not cite Section 1983 in his Complaint, but he did refer to Defendants' denial of his constitutional rights. Thus, “because Plaintiff is seeking to vindicate his constitutional rights and because he does not have a cause of action directly under the Constitution of the United States, a liberal reading of the Complaint requires the court to construe it as one invoking the court's federal question jurisdiction pursuant to 42 U.S.C. § 1983.” Kontaxes v. Vernon, 2012 WL 6762020, at *2 (W.D. Pa. Nov. 23, 2012), report and recommendation adopted, 2013 WL 42417 (W.D. Pa. Jan. 3, 2013).
Plaintiff subsequently filed a motion to dismiss (ECF No. 19, as supplemented by ECF No. 29), which the Court interpreted as a motion to remand. On September 8, 2022, a Report and Recommendation (“R&R”) was issued (ECF No. 31) that recommended denying his motion. After he filed objections, Judge Ranjan entered an order that adopted the R&R as the opinion of the Court and denied Plaintiff's motion (ECF No. 45).
All defendants seek dismissal of Plaintiff's Complaint. The DOC Defendants' motion to dismiss (ECF No. 9) has been fully briefed (ECF Nos. 10, 17). Wellpath has filed a motion to dismiss or for summary judgment (ECF No. 24), which has also been fully briefed (ECF Nos. 25, 35, 43).
B. Factual Allegations
Plaintiff alleges that, in March 2018, the DOC implemented a new policy concerning 2 inmate mail. He challenged this policy by suing the DOC, Secretary John Wetzel, Superintendent Estock and the Johnstown Postal Service Branch in a petition for review filed in the Commonwealth Court of Pennsylvania (docket number 615 M.D. 2018). (Compl. ¶ 4.)
Notice of Removal (ECF No. 1) Ex. A.
In April 2020, Plaintiff filed another action in the Commonwealth Court (docketed at 514 M.D. 2020) styled as a “Pro Se Emergency Ex-Parte Omnibus Motion for Relief (Compassionate Release)” based on the COVID-19 pandemic and his chronic immune deficiency diseases. (Id.) He sued Superintendent Estock, the Board of Probation and Parole, the Philadelphia District Attorney's Office and the Attorney General of Pennsylvania, alleging cruel and unusual punishment in violation of his rights under the Eighth Amendment. (Id.)
Plaintiff states that he is “a chronic diabetic, with severe diabetic cholesterol, neuropathy-hands, back, feet, intestinal issues, liver [cirrhosis] and Sarcoid's Disease causing nerve brain damage, left vision impairment, all cause[d] by brain nerve damage related to Sarcoid's Disease.” (Compl. ¶ 11.) He also states that he tested positive for COVID-19 both in November 2020 and again in February 2021. (Id. ¶ 4.)
According to Plaintiff, when he was released from the hospital on February 19, 2021, Defendants took advantage of his medicated condition to have him transferred him from SCI Pine Grove to SCI Houtzdale despite the fact that necessary medical care was available at SCI Pine Grove. He claims that the real reason for his transfer was in retaliation for the two cases he commenced in the Commonwealth Court. (Id. ¶¶ 5-7.) In addition, he alleges, his property, including legal documents, was stolen in an attempt to delay these cases. He also alleges that the Defendants have caused him to suffer “un-hygienic personal care, due to the lack of personal 3 care items.” (Id. ¶¶ 8-9.)
In a motion filed with the Complaint styled as “injunctive - supersedeas - stay - special relief,” Plaintiff asserts that on February 11, 2021, he revealed information to two staff transport officers about ongoing criminal activities at SCI Pine Grove, and that his transfer was in retaliation for this act and to prevent him from raising these issues. (ECF No. 1-2 at 13-14.) He claims that Superintendent Estock “has committed acts in violation and against the Sixth (6) Amendment ‘Right to Self Representation,' by personally or by/through co-conspirators, taking legal materials pertaining to pending lawful case(s).” (Id. at 12.)
C. Standard of Review
Under Rule 12(b)(6), a motion to dismiss may be granted only if, accepting all well-pleaded allegations in the complaint as true and viewing them in the light most favorable to the plaintiff, a court finds that plaintiff's claims lack facial plausibility.” Warren Gen. Hosp. v. Amgen Inc., 643 F.3d 77, 84 (3d Cir. 2011) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56 (2007)). “This requires a plaintiff to plead “sufficient factual matter to show that the claim is facially plausible,” thus enabling “the court to draw the reasonable inference that the defendant is liable for misconduct alleged.” Id. (quoting Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009)). While the complaint “does not need detailed factual allegations ... a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555. See also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
As noted by the Court of Appeals for the Third Circuit in Malleus v. George, 641 F.3d 560, 563 (3d Cir. 2011), a 12(b)(6) inquiry includes identifying the elements of a claim, 4 disregarding any allegations that are no more than conclusions and then reviewing the well-pleaded allegations of the complaint to evaluate whether the elements of the claim are sufficiently alleged.
In ruling on a Rule 12(b)(6) motion, courts generally consider only the complaint, exhibits attached thereto, and matters of public record. Schmidt v. Skolas, 770 F.3d 241, 249 (3d Cir. 2014). In addition, “a court may consider an undisputedly authentic document that a defendant attaches as an exhibit to a motion to dismiss if the plaintiff's claims are based on the document.” Pension Ben. Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993).
The Supreme Court has stated that “the allegations of [a] pro se complaint [are held] to less stringent standards than formal pleadings drafted by lawyers.” Haines v. Kerner, 404 U.S. 519, 520 (1972). If a claim “is vulnerable to 12(b)(6) dismissal, a district court must permit a curative amendment, unless an amendment would be inequitable or futile.” Phillips v. County of Allegheny, 515 F.3d 224, 236 (3d Cir. 2008) (citation omitted).
D. Analysis
Section 1983 provides that:
Every person who, under color of any statute, ordinance, regulation, custom, or usage of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or any other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress....42 U.S.C. § 1983. Section 1983 “is not itself a source of substantive rights, but a method for vindicating federal rights elsewhere conferred by those parts of the United States Constitution and federal statutes that it describes.” Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979). “The 5 first step in any such claim is to identify the specific constitutional right allegedly infringed.” Albright v. Oliver, 510 U.S. 266, 271 (1994). See also Baker, 443 U.S. at 140; Graham v. Connor, 490 U.S. 386, 394 (1989).
The Complaint alleges a violation of the First Amendment, which, among other things, prohibits retaliation for exercising free speech and related rights. Construed liberally, it may also include a Fourteenth Amendment claim that property was taken from him without due process of law. However, his reference to the Sixth Amendment, which concerns the right to counsel “in all criminal prosecutions,” has no relevance to civil actions. See Turner v. Rogers, 564 U.S. 431, 441 (2011) (“the Sixth Amendment does not govern civil cases.”)
In his responses to Defendants' motions, Plaintiff continues to maintain that he is not raising constitutional claims.
1. DOC Defendants' Motion
The DOC Defendants argue that, to the extent Plaintiff's claim is based upon his transfer to another prison, he fails to state a claim because he has no liberty interest in being housed at any particular correctional institution.They further contend that with respect to his claim that his legal documents and personal property were stolen, he does not identify who was responsible for this conduct.
Wellpath makes the same argument in its motion.
The DOC Defendants are correct that a convicted felon does not have a liberty interest in his or her placement in any particular prison. Meachum v. Fano, 427 U.S. 215, 224 (1976). See also Montanye v. Haymes, 427 U.S. 236 (1976) (prisoner has no due process right to a hearing prior to being transferred to another prison). “Consequently, custodial personnel do not infringe an inmate's liberty interests by placing her in one custodial facility rather than another.” 6 Chavarriaga v. New Jersey Dep't of Corr., 806 F.3d 210, 225 (3d Cir. 2015).
“Retaliation may be actionable, however, even when the retaliatory action does not involve a liberty interest.” Allah v. Seiverling, 229 F.3d 220, 224 (3d Cir. 2000). See also Rauser v. Horn, 241 F.3d 330, 333 (3d Cir. 2001) (relevant question in a retaliation case is not whether the prisoner had a “protected liberty interest in the privileges he was denied, but whether he was denied those privileges in retaliation for exercising a constitutional right.”). A retaliation claim requires a plaintiff to demonstrate that: (1) the plaintiff engaged in a constitutionally protected activity; (2) he or she suffered, at the hands of a state actor, adverse action sufficient to deter a person of ordinary firmness from exercising his constitutional rights; and (3) the protected activity was a substantial or motivating factor in the state actor's decision to take adverse action. Id.
Plaintiff claims that because he commenced two civil rights actions in the Commonwealth Court, the DOC Defendants retaliated against him. Filing a civil rights suit is unquestionably a protected activity for purposes of a retaliation claim. Allah, 229 F.3d at 224. In addition, Plaintiff alleges that after he revealed information to two staff transport officers about ongoing criminal activities at SCI Pine Grove, he was transferred to another prison in retaliation for this act and also to prevent him from raising these issues. Thus, Defendants' argument that Plaintiff has “failed to present any facts of him being engaged in a protected activity” (ECF No. 10 at 4) is misplaced.
Notably, however, a bare allegation that Plaintiff was transferred does not explain why the action was adverse. See Collazo v. Rozum, 646 Fed.Appx. 274, 276 (3d Cir. 2016) (“Collazo did not allege how the prison transfer was an adverse action, i.e., one that would be sufficient to 7 deter a person of ordinary firmness from exercising his rights.”); Soto v. New Jersey, 2020 WL 2537857, at *6 (D.N.J. May 19, 2020) (same). But see Small v. Kauffman, 2022 WL 3036050, at *5 (M.D. Pa. Aug. 1, 2022) (prisoner's “retaliation claim that he was transferred further away from family because he filed the instant action is an actionable claim that will be allowed to proceed against Defendant Kauffman [who signed the transfer order].”) While Plaintiff alleges that the medical specialists at UPMC Presbyterian believed he would receive proper after-care treatment at SCI Pine Grove, he fails to allege that he would not or did not receive proper medical treatment at SCI Houtzdale. As such, Plaintiff has failed to allege why the transfer was an adverse action.
As the Court of Appeals has held, “district courts must offer amendment-irrespective of whether it is requested-when dismissing a [pro se civil rights] case for failure to state a claim unless doing so would be inequitable or futile.” Fletcher-Harlee Corp. v. Pote Concrete Contractors, Inc., 482 F.3d 247, 251 (3d Cir. 2007). See also Collazzo, 646 Fed.Appx. at 276 (noting that Collazzo was given an opportunity to amend to explain how the transfer was adverse). Based on this analysis, it cannot be said that it would be futile to allow Plaintiff to amend his complaint.
The DOC Defendants also argue that while Plaintiff alleges that his legal documents and personal property were stolen, he has not alleged who was responsible for this alleged action. “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.” Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988) (citations omitted). “The Third Circuit 8 has held that a civil rights complaint is adequate where it states the conduct, time, place, and persons responsible.” Evancho v. Fisher, 423 F.3d 347, 353 (3d Cir. 2005) (citing Boykins v. Ambridge Area Sch. Dist., 621 F.2d 75, 80 (3d Cir. 1980)). That is because only a person who “subjects, or causes to be subjected” another person to a civil rights violation can be held liable under § 1983.
Again, the Court cannot conclude that it would be futile for Plaintiff to amend this claim. A plaintiff sometimes cannot ascertain the identity of all individuals involved in the underlying events and uses “John Doe” placeholders until such information can be ascertained. Although Plaintiff did not refer to John Does, he did indicate that there were “unknown co-conspirators” involved. (Compl. ¶ 5.) See Singletary v. Pennsylvania Dep't of Corr., 266 F.3d 186, 196-200 (3d Cir. 2001) (describing two methods by which notice may be imputed to a newly named party when a complaint is amended to replace a John Doe defendant).
For these reasons, the motion to dismiss filed by the DOC Defendants should be granted without prejudice and with leave to amend.
The DOC Defendants also argue that, because Plaintiff uses the word “mandamus,” his Complaint should be dismissed because federal courts “have no general power in a mandamus action to compel action ... by state officials.” In re Jones, 28 Fed.Appx. 133, 135 (3d Cir. 2002). Plaintiff filed this action in state court, so his use of this form of relief, particularly as a pro se plaintiff, is not dispositive. Moreover, the action was removed to federal court because Plaintiff has asserted civil rights claims under § 1983, pursuant to which other damages are available.
2. Wellpath's Motion
Wellpath argues that Plaintiff has failed to exhaust his administrative remedies because he failed to assert any grievances relating to the allegations of the Complaint. It further contends that it cannot be held liable for the actions of its employees and that it did not have the authority to transfer Plaintiff to another prison. 9
The Prison Litigation Reform Act (“PLRA”) provides that:
No action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.42 U.S.C. § 1997(e)(a). The Supreme Court has held that prisoners must exhaust their administrative remedies prior to bringing suit, even if the state does not provide the kind of remedy they seek (such as monetary damages) and even if they are about excessive force. Porter v. Nussle, 534 U.S. 516, 524-25 (2002); Booth v. Churner, 532 U.S. 731, 739 (2001); Nyhuis v. Reno, 204 F.3d 65 (3d Cir. 2000). The Court has further held that the PLRA requires “proper exhaustion,” that is, exhaustion as set forth in the procedures described, in a timely manner and so on. Woodford v. Ngo, 548 U.S. 81 (2006).
Failure to exhaust available administrative remedies is an affirmative defense. See Jones v. Bock, 549 U.S. 199, 216 (2007). As such, the defendant has the burden of pleading and proving that the prisoner failed to exhaust available administrative remedies. Brown v. Croak, 312 F.3d 109, 111 (3d Cir. 2002).
“While the failure to exhaust administrative remedies may form a basis for a dismissal for failure to state a claim, dismissal on that ground is appropriate only in those circumstances where the complaint reveals the exhaustion defense on its face.” Thomas v. Brinich, 579 Fed.Appx. 60, 62 (3d Cir. 2014). Plaintiff's Complaint does not reveal the exhaustion defense on its face and therefore, dismissal based on a lack of exhaustion defense is not appropriate. See Murphy, 2020 WL 806584, at *5 (“Because a 12(b)(6) motion raising failure to exhaust as an affirmative defense is appropriate only in cases where the complaint shows that a prisoner has failed to 10 exhaust available administrative remedies and because a prisoner is not required to plead or prove exhaustion, cases in which the failure to exhaust is appropriately raised on a motion to dismiss are rare.”) See also Todd v. Benning, 173 Fed.Appx. 980, 982 (3d Cir. 2006) (reversing district court that dismissed prisoner case based on lack of exhaustion without converting the motions into motions for summary judgment); Kirk v. Roan, 160 Fed.Appx. 188, 191 (3d Cir. 2005) (same); Greer v. Smith, 59 Fed.Appx. 491, 492 (3d Cir. 2003) (same).
The Court has not converted the motion to dismiss into a motion for summary judgment and declines to do so. Therefore, the materials submitted by Wellpath cannot be considered and the issue of lack of exhaustion cannot be resolved at this time. This defense may be renewed, as appropriate, at a later stage based on a complete record.
In addition, the fact that Wellpath is attempting to establish, i.e., that Plaintiff did not file a grievance concerning his transfer, does not necessary follow from the grievances attached to its motion.
Wellpath correctly argues that Plaintiff has not alleged that it had the authority to authorize his transfer and that as a medical provider for the DOC, it does not have such authority. Thus, it argues that as the allegedly improper transfer is the basis for Plaintiff's claims, it should be dismissed. While a liberal reading of the complaint may suggest that Plaintiff claims that Wellpath engaged in some other type of wrongful conduct related to his medical condition as it relates to the transfer, the Court agrees that the allegations in his complaint fail to plausibly state a claim against Wellpath. Moreover, as Wellpath asserts, it cannot be held liable under a respondeat superior theory for the actions of its (unnamed) employees. As the Court of Appeals has held, a private health company providing health care services to a prison “cannot be held responsible for the acts of its employees under a theory of respondeat superior or vicarious 11 liability.” Natale v. Camden Cnty. Corr. Facility, 318 F.3d 575, 583 (3d Cir. 2003) (citing Monell v. Department of Soc. Servs. of City of New York, 436 U.S. 658, 691 (1978)). Rather, plaintiffs “must provide evidence that there was a relevant policy or custom, and that the policy caused the constitutional violation they allege.” Id. at 584. Plaintiff has not met this pleading requirement.
As previously discussed, a district court must offer amendment when dismissing a case for failure to state a claim unless doing so would be inequitable or futile. Here, it cannot be said that it would be futile to allow Plaintiff to amend his complaint to attempt to state a plausible claim against Wellpath.
III. Conclusion
For the reasons stated above, it is respectfully recommended that the motion to dismiss filed by Defendants Lee Estock and Deputy Superintendent Yingling (ECF No. 9) and the motion to dismiss or, in the alternative, for summary judgment, filed by Defendant Wellpath (ECF No. 24) be granted without prejudice and with leave to amend.
Litigants who seek to challenge this Report and Recommendation must seek review by the district judge by filing objections by December 15, 2022. Any party opposing the objections shall file a response by January 3, 2023. Failure to file timely objections will waive the right of appeal. 12