Opinion
2:23-CV-00151-CRE
02-02-2023
JOSEPH WELTY, Plaintiff, v. ERIC HINTEMEYER, SECURITY CAPTAIN; MARTIN SWITZER, MAJOR OF THE GUARD; STEPHEN BUZAS, DSFM; AND MICHAEL ZAKEN, SUPERINTENDENT; Defendants,
Honorable W. Scott Hardy United States District Judge via electronic filing
REPORT AND RECOMMENDATION
Cynthia Reed Eddy United States Magistrate Judge
I. RECOMMENDATION
This civil action was initiated in forma pauperis in this Court by pro se Plaintiff Joseph Welty on January 31, 2023 against various officials of the Pennsylvania Department of Corrections (“DOC”) alleging civil rights violations under 42 U.S.C. § 1983.
Upon review of the Complaint, and pursuant to the screening requirements for litigants proceeding in forma pauperis, the Court recommends sua sponte dismissal of the Complaint with prejudice as malicious.
II. REPORT
a. Background
Plaintiff is an incarcerated individual in the custody of the Pennsylvania DOC at State Correctional Institution at Greene. He filed this lawsuit alleging that on February 10, 2022 between 6:30PM and 7:30PM at SCI Greene H-Block A-Pod Cell-9, he was assaulted and attacked by prison officials twisting his right arm/wrist out of the slider wicket, he sustained a cut to his right wrist that was one centimeter deep and two centimeters wide and he was sustained blood loss and passed out because he was on blood thinners. Compl. (ECF No. 1-1 at p. 4-5). He claims he was seen by the medical staff, and they took photographs of his wrist. Id. at p. 5. Plaintiff seeks damages in the amount of $2,000,000, for the Defendants to be fired and criminally charged. Id.
Prior to the filing of this case, Plaintiff previously filed an identical lawsuit pertaining to these same events in Welty v. Anderson, 2:22-cv-413-CRE (W.D.Pa. 2022) (“Welty I”). In Welty I, Plaintiff claims that on February 10, 2022 between 6:30PM and 7:30PM he was assaulted by corrections officers when they twisted his right arm/wrist in the slider wicket when removing handcuffs, he sustained a cut to his right arm, and he sustained blood loss because he was on blood thinners. Welty I (ECF No. 5 at p. 4-6). Plaintiff claims he was seen by medical who took pictures of his injuries. Id. at 5. This case is currently pending, and the Court most recently held a status conference in the matter on January 30, 2023. Welty I (ECF No. 59).
b. Standard of Review
i. Pro Se Litigants
A pro se pleading is held to a less stringent standard than more formal pleadings drafted by lawyers. Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976); Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972). As a result, a pro se complaint under § 1983 must be construed liberally, Hunterson v. DiSabato, 308 F.3d 236, 243 (3d Cir. 2002), so “as to do substantial justice.” Alston v. Parker, 363 F.3d 229, 234 (3d Cir. 2004) (citations omitted). While pro se litigants are afforded this leniency, they “do not have a right to general legal advice from judges,” and “courts need not provide substantive legal advice to pro se litigants” because pro se litigants must be treated “the same as any other litigant.” Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 245 (3d Cir. 2013).
While 28 U.S.C. § 1915 authorizes litigants like Plaintiffs to proceed in forma pauperis, such status is a privilege which may be denied when abused. After granting in forma pauperis status, the Court must dismiss any claims sua sponte if: “(i) the allegation of poverty is untrue; (ii) the action is frivolous or malicious; (iii) the complaint fails to state a claim upon which relief may be granted; or (iv) the complaint seeks money damages from a defendant who is immune from suit.” 28 U.S.C. § 1915(e)(2).
ii. Prison Litigation Reform Act, 28 U.S.C. 1915A (“PLRA”)
This Court has a statutory responsibility to review complaints filed by prisoners and by those who have been granted in forma pauperis to determine if the complaint states a valid claim for relief. The Court is required to identify cognizable claims and to sua sponte dismiss any claim that is frivolous, malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. See 28 U.S.C. §§ 1915(e)(2)(B) and 1915A.
Moreover, not only is a court permitted to sua sponte dismiss a complaint which fails to state a claim, but it is required to do so by the mandatory language of “the court shall dismiss” utilized by § 1915(e)(2) . In performing a court's mandated function of sua sponte reviewing complaints under 28 U.S.C. §§ 1915(e) and 1915A to determine if they fail to state a claim upon which relief can be granted, a federal district court applies the same standard as applied to motions to dismiss under Federal Rule of Civil Procedure 12(b)(6). See, e.g., Powell v. Hoover, 956 F.Supp. 565, 568 (M.D. Pa. 1997) (applying Rule 12(b)(6) standard to claim dismissed under 28 U.S.C. § 1915(e)(2)(B)(ii)).
In reviewing complaints as mandated by 28 U.S.C. § 1915(e) and § 1915A and, consequently, utilizing the standards for a 12(b)(6) motion to dismiss, the complaint must be read in the light most favorable to the plaintiff and all well-pleaded, material allegations of fact in the complaint must be taken as true. See Estelle v. Gamble, 429 U.S. 97 (1976). Because Plaintiff is pro se, the court will accord him an even more liberal reading of the complaint, employing less stringent standards than when judging the work product of an attorney. Haines v. Kerner, 404 U.S. 519 (1972).
c. Discussion
Under the PLRA, a Court must dismiss a complaint if it is malicious. A duplicative complaint is malicious when it “duplicates allegations of another pending federal lawsuit by the same plaintiff.” Pittman v. Moore, 980 F.2d 994, 995 (5th Cir. 1993). See accord Washington v. Gilmore, 825 Fed.Appx. 58, 60 n.2 (3d Cir. 2020) (unpublished). “Repetitious litigation of virtually identical causes of action may be dismissed under § 1915 as frivolous or malicious.” McWilliams v. Colorado, 121 F.3d 573, 574 (10th Cir.1997) (quotation marks and alteration omitted). See also McGill v. Juanita Kraft Postal Service, Civ. Act. No. 3:03-CV-1113-K, 2003 U.S. Dist LEXIS 9636 *4 (N.D. Tx. June 6, 2003) (“A complaint is thus malicious when it ‘duplicates allegations of another pending federal lawsuit by the same plaintiff' or when it raises claims arising out of a common nucleus of operative facts that could have been brought in the prior litigation.”) (quoting Pittman, 980 F.2d at 994-94).
Here, Plaintiff has asserted identical claims as he asserted in the pending Welty I case, and both complaints arise out of the same common nucleus of operative facts. In both cases, Plaintiff alleges that on February 10, 2022 between 6:30PM and 7:30PM, corrections officers attacked him when removing his handcuffs and cut his right wrist in the wicket, causing him to lose blood because he was on blood thinners. Therefore, Plaintiff's duplicative complaint here is malicious as it sets out the exact claims and circumstances as in Welty I, a case that is still pending and active before this Court and must be dismissed with prejudice.
d. Conclusion
Based on the foregoing, it is respectfully recommended that Plaintiff's complaint be dismissed with prejudice as malicious.
Any party is permitted to file Objections to this Report and Recommendation to the assigned United States District Judge. In accordance with 28 U.S.C. § 636(b), Fed.R.Civ.P. 6(d) and 72(b)(2), and LCvR 72.D.2, Plaintiff, because he is a non-electronically registered party, must file written objections, if any, to this Report and Recommendation by February 23, 2023, unless otherwise ordered by the District Judge. Plaintiff is cautioned that failure to file Objections within this timeframe “will waive the right to appeal.” Brightwell v. Lehman, 637 F.3d 187, 193 n.7 (3d Cir. 2011) (quoting Siers v. Morrash, 700 F.2d 113, 116 (3d Cir. 1983). See also Equal Emp. Opportunity Comm'n v. City of Long Branch, 866 F.3d 93, 100 (3d Cir. 2017) (describing standard of appellate review when no timely and specific objections are filed as limited to review for plain error).
Respectfully submitted, JOSEPH WELTY SCI GREENE 169 PROGRESS DRIVE WAYNESBURG, PA 15370