Opinion
Case No. 1:18-cv-0156 (Erie)
03-22-2019
THOMAS PETOFF, Plaintiff v. MICHAEL HOLMAN; GARY SEYMOUR; and RONALD BRYANT, Defendants
REPORT AND RECOMMENDATION ON DEFENDANTS' MOTION TO DISMISS [ECF No. 16] I. Recommendation.
It is respectfully recommended that Defendants' Motion to Dismiss [ECF No. 16] be GRANTED and that the Plaintiff's Complaint [ECF No. 4] be DISMISSED with prejudice. II. Report.
Plaintiff Thomas Petoff began this action by moving for Leave to Proceed in Forma Pauperis, which this Court granted. ECF No. 1; ECF No. 3. His Complaint was docketed the same day. ECF No. 4. At all times relevant, Petoff was a pretrial detainee being held at the Erie County Prison. Petoff's Complaint alleges that he was denied access to courts in violation of his rights under the First Amendment to the Constitution. He claims that various actions of the Defendants interfered with his ability to prosecute a civil rights action he had filed in this Court, Petoff v. Yeaney, et al., No. 1:16-cv-00079. Because he was confined to maximum security, Petoff contends that he could not access the law library and had to have legal research materials delivered to his cell. See ECF No. 4, ¶4(C). But he admits he could use those materials for ninety-minutes, once a week. Id. Petoff also alleges that he was denied assistance from a person trained in the law or the law librarian to help him prosecute his lawsuit. Id. He also faults the Defendants for denying him the free copies, notary services, and extra time with law books to which he claims he was entitled. Id. He blames the dismissal of his prior lawsuit on these deprivations, alleging that Defendants' actions forced him to "wing it" in prosecuting that case. Id.
The Defendants seek dismissal of this action on many bases. They contend that Petoff's claims are frivolous, malicious, and fail to state a claim, thus they are subject to dismissal under the Prison Litigation Reform Act; Petoff's claims are barred by res judicata; Petoff has failed to state a claim under the First Amendment and the Complaint should be dismissed under Federal Rule of Civil Procedure 12(b)(6); and that given what has been pleaded, Petoff cannot establish a claim under Monell v. Dep't of Soc. Servs., 436 U.S. 658 (1978). It is recommend that Petoff's Complaint be dismissed for failing to state a claim. III. Standards for Motions to Dismiss
Under Monell, a municipality or local governing body cannot be held liable under § 1983 for the constitutional torts of its employees through the doctrine of respondeat superior. But "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 ... the government as an entity is responsible under § 1983." 436 U.S. at 694. That said, since Petoff has not sued a governmental entity, that basis for dismissal does not apply here.
The Court recognizes that Petoff is proceeding pro se and as such, he is given substantial deference and liberality in federal court. Haines v. Kerner, 404 U.S. 519. Petoff is a prisoner and the United States Court of Appeals for the Third Circuit has cautioned that courts must be especially "flexible when dealing with imprisoned pro se litigants" because they have limited access to resources "to comply with the technical rules of modern litigation." Mala v. Crown Bay Marina, 704 F.3d 239, 244-45 (3d Cir. 2013). Even so, pro se litigants, incarcerated or not, are not free to ignore the Federal Rules of Civil Procedure. Spence v. Schafer, 2013 WL 1364025, at *1 (W.D. Pa. Mar. 7, 2013) (citing Pruden v. Long, 2006 WL 3325439, at *1 (M.D. Pa. Oct. 24, 2006)).
Thus, any complaint filed under 42 U.S.C. § 1983—as Petoff's was here—must still bear a reasonable relation to the Federal Rules of Civil Procedure. Boozer v. Riggenbach, 2018 WL 1179683 at *2 n.1 (Jan. 29, 2018). Petoff's Complaint, therefore, "must contain a modicum of factual specificity, identifying the particular conduct of the defendant that is alleged to have harmed the plaintiff, so that the court can determine whether the complaint is frivolous and whether a defendant has adequate notice to frame an answer." Id. (citing Frazier v. Southeastern Pennsylvania Transp. Auth., 785 F.2d 65, 68 (3d Cir. 1986)). "A civil rights complaint complies with this standard if it alleges the conduct violating the plaintiff's rights, the time and the place of that conduct, and the identity of the responsible officials. It must include factual allegations to support the constitutional claims raised in the complaint." Id. (citation omitted). IV. Discussion
Apart from the varied rationales offered by the Defendants, Petoff's Complaint could be dismissed for a more basic reason: he failed to file a meaningful response in opposition to the Defendants' motion and therefore abandoned his cause of action. See, e.g., Okim v. Bank of America, 2012 WL 5930613, at *5 n.2 (N.D. Ga. Oct. 25, 2012) (finding that the plaintiff's failure to respond to the defendant's arguments in support of the motion to dismiss constitutes abandonment of the claims), report and recommendation adopted by 2012 WL 5930267 (N.D. Ga. Nov. 26, 2012). After the Defendants filed their Motion to Dismiss, the Court issued an order giving Petoff thirty days to respond. He filed a two-sentence response in which he states "I am writing to ask the Plaintiff Motion to Dismiss be denied. Being as though I have had an opportunity to obtain discovery material." ECF No. 19. That is the extent of his response; no argument was made why the Motion to Dismiss should be denied. Id.
Although Petoff labels the Motion to Dismiss as the Plaintiff's, the Court construes his filing as an opposition to the Defendants' motion.
Given that discovery has not begun, Petoff's statement is puzzling. It is possible that Petoff meant that the motion should be denied because he has not had an opportunity for discovery. But that is not a valid reason to deny a motion to dismiss. When addressing a motion to dismiss, the Court must take all factual allegations in the complaint as true and construe them in the plaintiff's favor. See Chilcott v. Erie Cty. Prison, 2018 WL 5982441, *2 (W.D. Pa. Nov. 13, 2018). Given this well-established rule, discovery need not occur until the Court decides whether a plaintiff has alleged enough facts to state a claim.
More broadly, Petoff's response is no response. He makes no argument nor advances any position in opposition to the Defendants' motion. This, despite being provided with the specific opportunity to do so by the Court. Thus, the Court could view the Defendants' Motion to Dismiss as unopposed and grant it. See, e.g., Spencer v. Varano, 2018 WL 3352655, at *1 (M.D. Pa. July 9, 2018) (citing Sikkelee v. Precision Airmotive Corp., 2011 WL 1344635 (M.D. Pa. 2011) (dismissing claims as unopposed when the plaintiff failed to respond to arguments made by the defendants in support of their motion to dismiss)); Marjac, LLC v. Trenk, 2006 WL 3751395, *5 n. 3 (D.N.J. Dec. 19, 2006) (citing cases to support the Court's treatment of plaintiff's 42 U.S.C. § 1983 claims as abandoned because plaintiff failed to address defendant's motion to dismiss with respect thereto).
But when a plaintiff is proceeding pro se, a court should not grant a motion to dismiss "without undertaking a merits analysis." Stackhouse v. Mazurkiewicz, 951 F.2d 29, 30 (3d Cir. 1991). Since Petoff is proceeding pro se, the Court will analyze his Complaint on the merits to determine whether he has pleaded a plausible claim. After careful and thorough review, he has not alleged a claim and his Complaint should be dismissed.
To reiterate, "[t]o survive a motion to dismiss, a complaint must contain sufficient factual allegations, taken as true, to 'state a claim to relief that is plausible on its face.'" Fleisher v. Standard Ins., 679 F.3d 116, 120 (3d Cir. 2012) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The Court accepts all factual allegations in the complaint as true and construe those facts in the light most favorable to the plaintiff. Id. Although pro se complaints are held to "'less stringent standards than formal pleadings drafted by lawyers,'" pro se litigants are still required to assert sufficient facts in their complaints to support a claim. Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 244-45 (3d Cir. 2013) (quoting Haines v. Kerner, 404 U.S. 519, 520 (1972)).
Petoff alleges that the Defendants unconstitutionally interfered with his ability to move forward on a civil rights case he filed in this Court. See ECF No. 4, ¶ IV (c) referencing Petoff v. Yeaney et al., No. 1:16-cv-0079 (Erie). Under the First Amendment, every inmate has a right of access to the courts. Monroe v. Beard, 536 F.3d 198, 205 (3d Cir. 2008) (citing Lewis v. Casey, 518 U.S. 343, 346 (1996)). To sustain such a claim, Petoff must allege an "actual injury" to his litigation efforts. Lewis, 518 U.S. at 349. To establish an actual injury, Petoff must show that a non-frivolous legal claim had been frustrated or was being impeded. Id.; see also O'Connell v. Williams, 241 Fed. Appx. 55, 57 (3d Cir. 2007). "[A]n inmate cannot establish a relevant actual injury simply by establishing that his prison's law library or legal assistance ... is subpar in some theoretical sense." Lewis, 518 U.S. at 351; Monroe, 536 F.3d at 206 (observing that a "claim rest[ing] solely on the ground that the defendants confiscated ... legal materials" is insufficient on its face to state a denial of access to courts claim). He has not done so.
Put simply, Petoff has not alleged an actual injury to his litigation efforts at Docket Number 1:16-cv-0079 that led to him being shut out of court. For example, Petoff does not allege that he lost an opportunity to file a case in court, or that he could not later file a case after the alleged interference with his right of access to the courts ceased. He claims only that the Defendants limited his access to the law library and did not provide him with help from someone "trained in the law." ECF No. 4 ¶ 4(c). Adequate prison law libraries are a component of the right of access to the courts. See Bounds v. Smith, 430 U.S. 817, 828 (1977). And such claims fall under the right of access to the courts. Tinsley v. Giorla, 369 Fed. Appx. 378, 380-81 (3d Cir. 2010); Veteto v. Miller, 829 F. Supp. 1486, 1494 (M.D. Pa. 1992). But Petoff's Complaint does not allege how his denial of access to the law library has caused him injury; as such he has not stated a cognizable denial of access to the courts claim. See Monroe v. Beard, 536 F. 3d 198, 205-06 (3d Cir. 2008) (internal citations omitted). Notably, Petoff admits he was not deprived of legal reference materials because he could order them to be delivered to his cell for ninety-minutes once a week. ECF No. 4, ¶ IV (C). He also has not alleged how that limitation on access to legal materials impacted his abilities to litigate his civil rights case. Thus, he has not set out a valid access to court's claim.
Petoff also claims that the Defendants unconstitutionally denied him free copies and notary services. Id. But "an inmate has no constitutional right to free copies and any prison regulations that limit access to such copies are 'reasonably related to legitimate penological interests.'" See Tinker v. Menard, 2018 WL 3869137, at *6 (S.D.N.Y. July 11, 2006) (quoting Turner v. Safley, 482 U.S. 78, 89 (1987)). The same goes for free access to a notary public. See Duncan v. Foti, 828 F.2d 297, 298 (5th Cir. 1987) (finding inmates have no constitutional right to notary services given the alternative of filing unsworn declarations under penalty of perjury under 28 U.S.C. § 1746).
All of this, Petoff contends resulted in summary judgment being entered against him in his civil rights lawsuit. Examining the record in that case belies his claims, however. Petoff was able to file a Complaint, a Motion to Compel Discovery, a Motion for Preliminary Injunction, a Motion to Appoint Counsel, a Declaration in Opposition to Defendant's Motion for Summary Judgment, a Statement of Disputed Factual Issues, and a motion for copies, all of these being just a sample of the other filings he submitted to the Court. See Petoff, No. 1:16-cv-00079, ECF Nos. 4, 21, 38, 29, 36, 45, 53, 54, 55, 64, 67, 68.
Evidenced by those numerous filings, Petoff was in no way hampered, interfered with, or prohibited from advancing his claims in Case Number 1:16-cv-00079. Nor do any of his many filings at that docket number claim a denial of access to legal materials. Thus, he cannot now state the injury necessary to succeed. For these reasons then, the Defendants' Motion to Dismiss should be granted and Petoff's Complaint should be dismissed. It is also recommended that Petoff's Complaint be dismissed with prejudice and without further leave to amend because the Court finds that any amendment would be futile. See Foman v. Davis, 371 U.S. 178, 182 (1962); Simmons v. Szelewski, 642 Fed. Appx. 95, 98 (3d Cir. 2016). Thus, it is recommended that the Defendants' Motion to Dismiss [ECF No. 16] be granted. III. Notice
The parties are referred to 28 U.S.C. § 636(b)(1) and Local Civil Rule 72(C)(2) for the appropriate procedure if any party desires to file objections to these findings and recommendations. Objections must be in writing and must be filed within fourteen days of this date. Failure to file timely objections may constitute a waiver of appellate rights. Angle v. Miurn, 2013 WL 5888272, *1 (W.D. Pa. Oct. 31, 2013).
/s/_________
RICHARD A. LANZILLO
United States Magistrate Judge
Submitted this 22nd day of March, 2019.