Opinion
CIVIL ACTION NO. 3:19-cv-00410
06-17-2019
ANDREW TOLBERT, #NB0318, Plaintiff, v. S. ELLENBERGER, et al., Defendants.
(MARIANI, J.)
() REPORT AND RECOMMENDATION
This is a pro se prisoner civil rights action. The plaintiff, Andrew Tolbert, alleges conduct by the defendants in violation of his federal constitutional rights, made actionable by 42 U.S.C. § 1983, arising out of an allegedly falsified misconduct report and related disciplinary proceedings. The named defendants are S. Ellenberger, a hearing examiner employed with the Pennsylvania Department of Corrections ("DOC"), and Mr. Hann, a correctional officer employed with the DOC. At the time of filing, Tolbert was incarcerated at SCI Huntingdon, located in Huntingdon County, Pennsylvania. He is currently incarcerated at SCI Dallas, located in Luzerne County, Pennsylvania.
I. BACKGROUND
In October 2018, Tolbert was an inmate confined in the Restricted Housing Unit ("RHU") at SCI Huntingdon. On October 10, 2018, defendant Hann prepared a misconduct report charging Tolbert with two offenses: (a) using abusive, obscene, or inappropriate language to or about an employee; and (b) possession of contraband. In the misconduct report, Hann alleged that, on October 9, 2018, Tolbert stated to him that "all you gotta do is take $2,500 from me and bring me in a package," presumably containing drugs or other contraband.
Tolbert subsequently appeared for a disciplinary hearing before defendant Ellenberger. Tolbert alleges that Ellenberger denied him the right to call witnesses and present documentary evidence in his defense, and that she was biased against him. Ellenberger found Tolbert guilty on both misconduct charges and imposed a sanction of thirty days of disciplinary confinement. Tolbert appealed the hearing examiner's decision, which was upheld at both the institutional and statewide levels.
The precise date of Tolbert's disciplinary hearing is unclear, but it clearly occurred sometime before his first-level appeal from the hearing examiner's decision, which was considered by a Program Review Committee beginning on October 22, 2018. (See Doc. 1, at 16.) --------
II. LEGAL STANDARD
Under 28 U.S.C. § 1915A, the Court is obligated to screen a civil complaint in which a prisoner is seeking redress from a governmental entity or an officer or employee of a governmental entity. 28 U.S.C. § 1915A(a); James v. Pa. Dep't of Corr., 230 Fed. App'x 195, 197 (3d Cir. 2007). The Court must dismiss the complaint if it is "frivolous" or "fails to state a claim upon which relief may be granted." 28 U.S.C. § 1915A(b)(1). The Court has a similar obligation with respect to actions brought in forma pauperis and actions concerning prison conditions. See 28 U.S.C. § 1915(e)(2)(B)(i); id. § 1915(e)(2)(B)(ii); 42 U.S.C. § 1997e(c)(1). See generally Banks v. Cty. of Allegheny, 568 F. Supp. 2d 579, 587-89 (W.D. Pa. 2008) (summarizing prisoner litigation screening procedures and standards).
An action is "frivolous where it lacks an arguable basis in either law or fact." Neitzke v. Williams, 490 U.S. 319, 325 (1989); see also Thomas v. Barker, 371 F. Supp. 2d 636, 639 (M.D. Pa. 2005). To determine whether it is frivolous, a court must assess a complaint "from an objective standpoint in order to determine whether the claim is based on an indisputably meritless legal theory or clearly baseless factual contention." Deutsch v. United States, 67 F.3d 1080, 1086 (3d Cir. 1995) (citing Denton v. Hernandez, 504 U.S. 25, 34 (1992)); Thomas, 371 F. Supp. 2d at 639. Factual allegations are "clearly baseless" if they are "fanciful," "fantastic," or "delusional." See Denton, 504 U.S. at 32-33. "[A] finding of factual frivolousness is appropriate when the facts alleged rise to the level of the irrational or the wholly incredible, whether or not there are judicially noticeable facts available to contradict them." Id. at 33. A district court is further permitted, in its sound discretion, to dismiss a claim "if it determines that the claim is of little or no weight, value, or importance, not worthy of serious consideration, or trivial." Deutsch, 67 F.3d at 1089.
The legal standard for dismissing a complaint for failure to state a claim under § 1915A(b)(1), § 1915(e)(2)(B)(ii), or § 1997e(c) is the same as that for dismissing a complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Brodzki v. Tribune Co., 481 Fed. App'x 705, 706 (3d Cir. 2012) (per curiam); Mitchell v. Dodrill, 696 F. Supp. 2d 454, 471 (M.D. Pa. 2010); Banks, 568 F. Supp. 2d at 588. "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 the plaintiff's claims lack facial plausibility." Warren Gen. Hosp. v. Amgen Inc., 643 F.3d 77, 84 (3d Cir. 2011) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-56 (2007)). In deciding the 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). Although the Court must accept the fact allegations in the complaint as true, it is not compelled to accept "unsupported conclusions and unwarranted inferences, or a legal conclusion couched as a factual allegation." Morrow v. Balaski, 719 F.3d 160, 165 (3d Cir. 2013) (quoting Baraka v. McGreevey, 481 F.3d 187, 195 (3d Cir. 2007)). Nor is it required to credit factual allegations contradicted by indisputably authentic documents on which the complaint relies or matters of public record of which we may take judicial notice. In re Washington Mut. Inc., 741 Fed. App'x 88, 91 n.3 (3d Cir. Sept. 25, 2018); Sourovelis v. City of Philadelphia, 246 F. Supp. 3d 1058, 1075 (E.D. Pa. 2017); Banks, 568 F. Supp. 2d at 588-89.
III. DISCUSSION
Tolbert claims that the defendants have violated his Fourteenth Amendment due process rights. He claims that Officer Hann violated his due process rights by issuing a false misconduct report, and that Hearing Examiner Ellenberger denied him the minimum procedural due process rights afforded to inmates in prison disciplinary proceedings. See generally Wolff v. McDonnell, 418 U.S. 539, 563-70 (1974).
A. Fabricated Misconduct Reports
Tolbert asserts a claim for damages against Hann under 42 U.S.C. § 1983 for violation of his Fourteenth Amendment right to due process. Specifically, Tolbert alleges that Hann fabricated a misconduct report concerning an incident on October 9, 2018. But an inmate cannot state a due process claim based solely on the filing of an allegedly false misconduct report. See Smith v. Mensinger, 293 F.3d 641, 653 (3d Cir. 2002); see also Banks v. Rozum, 639 Fed. App'x 778, 782 (3d Cir. 2016) (per curiam); Seville v. Martinez, 130 Fed. App'x 549, 551 (3d Cir. 2005) (per curiam). Tolbert received the opportunity to be heard and defend against the allegedly false misconduct report, which is all that due process requires. See Smith, 293 F.3d at 654; see also Thomas v. McCoy, 467 Fed. App'x 94, 97 (3d Cir. 2012) (per curiam).
Accordingly, it is clear that this claim is based on an indisputably meritless legal theory and, therefore, it should be dismissed as legally frivolous, pursuant to 28 U.S.C. § 1915(e)(B)(i), 28 U.S.C. § 1915A(b)(1), and 42 U.S.C. § 1997e(c). In the alternative, this claim should be dismissed for failure to state a claim upon which relief can be granted, pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii), 28 U.S.C. § 1915A(b)(1), and 42 U.S.C. § 1997e(c).
B. Disciplinary Proceedings
Tolbert asserts a claim for damages against Ellenberger under 42 U.S.C. § 1983 for violation of his Fourteenth Amendment right to procedural due process. Specifically, Tolbert alleges that Ellenberger, as the hearing examiner who presided over Tolbert's disciplinary hearing with respect to the October 10, 2018, misconduct report, denied Tolbert his right to call witnesses and present documentary evidence in his defense, and that he was denied the right to an impartial adjudicator because Ellenberger was biased against him for unspecified reasons.
The Fourteenth Amendment provides that no state shall "deprive any person of life, liberty, or property, without due process of law." U.S. Const. amend. XIV, § 1. As a threshold matter, "[i]t is axiomatic that a cognizable liberty or property interest must exist in the first instance for a procedural due process claim to lie." Mudric v. Att'y Gen., 469 F.3d 94, 98 (3d Cir. 2006) (citing Bd. of Regents of State Colls. v. Roth, 408 U.S. 564, 569 (1972)); see also Wolfe v. Pa. Dep't of Corr., 334 F. Supp. 2d 762, 773 (E.D. Pa. 2004).
Here, the only sanction imposed as a result of the disciplinary proceedings against Tolbert was his confinement in disciplinary custody for a period of 30 days. The Supreme Court of the United States has previously held that "discipline in segregated confinement [does] not present the type of atypical, significant deprivation in which a State might conceivably create a liberty interest." Sandin v. Conner, 515 U.S. 472, 486 (1995) (finding no deprivation of a protected liberty interest in 30 days of disciplinary segregation); see also Williams v. Bitner, 307 Fed. App'x 609, 611 (3d Cir. 2009) (per curiam) (90 days disciplinary segregation); Smith v. Mensinger, 293 F.3d 641, 654 (3d Cir. 2002) (7 months disciplinary confinement); Young v. Beard, 227 Fed. App'x 138, 141 (3d Cir. 2007) (per curiam) (930 days in disciplinary segregation). Absent a protected liberty interest, the alleged procedural defects in the disciplinary proceedings against Tolbert lack any legal significance. Williams, 307 Fed. App'x at 611; see also Mudric, 469 F.3d at 98; Wolfe, 334 F. Supp. 2d at 773.
Accordingly, it is clear that this claim is based on an indisputably meritless legal theory and, therefore, it should be dismissed as legally frivolous, pursuant to 28 U.S.C. § 1915(e)(B)(i), 28 U.S.C. § 1915A(b)(1), and 42 U.S.C. § 1997e(c). In the alternative, this claim should be dismissed for failure to state a claim upon which relief can be granted, pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii), 28 U.S.C. § 1915A(b)(1), and 42 U.S.C. § 1997e(c).
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 v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002). Based on the allegations of the complaint, it is clear that amendment in this case would be futile. It is therefore recommended that the complaint be dismissed without leave to amend.
IV. PLRA "THREE STRIKES" WARNING
The plaintiff is hereby notified that a prisoner may not bring a civil action or appeal a civil judgment under 28 U.S.C. § 1915,
if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an
action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury.28 U.S.C. § 1915(g).
If this recommended disposition is adopted by the presiding United States District Judge, the dismissal of this action as frivolous and for failure to state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B)(i), § 1915(e)(2)(B)(ii), and § 1915A(b)(1) will constitute a "strike" under 28 U.S.C. § 1915(g), and the accumulation of additional strikes may bar the plaintiff from proceeding in forma pauperis in later cases absent a showing of imminent danger. See generally Byrd v. Shannon,715 F.3d 117, 126 (3d Cir. 2013) (articulating Third Circuit standard for application of § 1915(g) "three strikes" rule).
V. RECOMMENDATION
For the foregoing reasons, it is recommended that:
1. The complaint (Doc. 1) be DISMISSED as legally frivolous and for failure to state a claim upon which relief can be granted, pursuant to 28 U.S.C. § 1915A(b)(1), 28 U.S.C. § 1915(e)(2)(B)(i), 28 U.S.C. § 1915(e)(2)(B)(ii), and 42 U.S.C. § 1997e(c)(1); and
2. The Clerk be directed to CLOSE this case. Dated: June17, 2019
s/Joseph F . Saporito , Jr.
JOSEPH F. SAPORITO, JR.
United States Magistrate Judge NOTICE
NOTICE IS HEREBY GIVEN that the undersigned has entered the foregoing Report and Recommendation dated June 17, 2019. Any party may obtain a review of the Report and Recommendation pursuant to Local 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.
Failure to file timely objections to the foregoing Report and Recommendation may constitute a waiver of any appellate rights. Dated: June 17, 2019
s/Joseph F . Saporito , Jr.
JOSEPH F. SAPORITO, JR.
United States Magistrate Judge