Opinion
Civil Action 21-620 Re: ECF 18
09-22-2021
BRIAN L. ANDERSON, Plaintiff, v. BRIAN ENGLERT, Guard; KOZLOWSKI, Sergeant; PENDELL, Captain; WISEMAN, Captain; YOUNG, Captain; and RICHARD FITZGERALD, County Executive, Defendants.
David S. Cercone, District Judge.
REPORT AND RECOMMENDATION
MAUREEN P. KELLY, UNITED STATES MAGISTRATE JUDGE.
I. RECOMMENDATION
For the reasons that follow, it is respectfully recommended that the complaint, ECF No. 18, be dismissed sua sponte pursuant to 28 U.S.C. § 1915(e)(2)(B) for failure to state a claim for which relief can be granted, as follows:
• Plaintiff's federal lost property claim should be dismissed without leave to amend in this Court, but without prejudice to filing a state law claim in state court, if appropriate;
• Plaintiff's claims regarding “unsolicited talk of a sexual nature, ” as well as his scant allegation of “meal tampering, ” should be dismissed, with leave to amend; and
• All other claims should be dismissed with prejudice.
II. REPORT
A. Factual and Procedural Background
Brian L. Anderson (“Plaintiff”) is a pretrial detainee currently confined at the Allegheny County Jail (“ACJ”) in Pittsburgh, Pennsylvania. On May 11, 2021, this Court received Plaintiff's Complaint, as well as a Motion and Declaration in Support of Motion to Proceed in Forma Pauperis (“IFP Motion”). ECF No. 1. The initial IFP Motion was denied. ECF No. 4. However, due to ACJ's refusal to accept this Court's initial mailing of the order denying IFP, Plaintiff was not given timely notice of its denial. ECF Nos. 6 and 13. Plaintiff filed a second IFP Motion on August 16, 2021, which was granted on August 19, 2021. ECF Nos. 14 and 17. The Complaint was filed with an effective date of August 19, 2021. ECF No. 18.
Plaintiff brings this lawsuit pursuant to the Civil Rights Act of 1871. 42 U.S.C. § 1983 et seq. In his Complaint, Plaintiff alleges that on March 9, 2021, Defendant Englert “forwarded unsolicited talk of a sexual nature, after being asked to turn DOWN the TV during 11-7am shift - overtime[, ]” [sic]. ECF No. 18 at 7.
Defendant Englert allegedly searched Plaintiff's cell the following day, and “deliberately damaged items purchased from ACJ commissary.” Id.
Plaintiff asserts that he suffers mental anguish, and fears retribution because “no one thought to remove [him] from the 3B pod forthwith[, ]” even though Plaintiff had been placed in in disciplinary housing in March of 2021 based on Defendant Englert's write-up. Id.
Plaintiff alleges that he grieved these incidents, but that those grievances were ignored by Defendant Pendell due to that Defendant's friendship with Defendant Englert. Id. at 9. Petitioner also alleges “meal tampering[, ]” but does not provide any factual allegation to support this claim. Id.
By way of relief, Plaintiff seeks actual damages, punitive damages, and court costs. Id. at 7.
B. Legal Standard
28 U.S.C. § 1915 establishes the criteria for allowing an action to proceed IFP. Section 1915(e) requires the federal courts to review complaints filed by persons that are proceeding in forma pauperis and to dismiss, at any time, any action that is frivolous or malicious, fails to state a claim on which relief may be granted, or seeks monetary relief against a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B). Thus, a court must dismiss, sua sponte, a complaint that lacks arguable merit in fact or law. Stackhouse v. Crocker, 266 Fed.Appx. 189, 190 (3d Cir. 2008) (citing Neitzke v. Williams, 490 U.S. 319, 325 (1989)).
The standard for reviewing a complaint under this section 1915(e)(2)(B) is the same as that for determining a motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. See Tourscher v. McCullough, 184 F.3d 236, 240 (3d Cir. 1999); see also Banks v. Mozingo, No. 08-004, 2009 WL 497572, at *6 (W.D. Pa. Feb. 26, 2009) (Cercone, J.). Under that Rule, dismissal is appropriate if, reading the complaint in the light most favorable to the plaintiff, and accepting all factual allegations as true, no relief could be granted under any “reasonable reading of the complaint” Phillips v. Cnty of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008). A complaint must be dismissed even if the claim to relief is “conceivable, ” because a plaintiff must allege “enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
A court must employ less stringent standards when considering pro se pleadings than when judging the work product of an attorney. Haines v. Kerner, 404 U.S. 519, 520 (1972). In a Section 1983 action, a court must liberally construe a pro se litigant's pleadings and “‘apply the applicable law, irrespective of whether a pro se litigant has mentioned it by name.'” Higgins v. Beyer, 293 F.3d 683, 688 (3d Cir. 2002) (quoting Holley v. Dep't of Veteran Affairs, 165 F.3d 244, 247-48 (3d Cir. 1999)). “‘Since this is a § 1983 action, the [pro se] plaintiffs are entitled to relief if their complaint sufficiently alleges deprivation of any right secured by the Constitution.'” Higgins, 293 F.3d at 688 (quoting Nami v. Fauver, 82 F.3d 63, 65 (3d Cir. 1996)). That said, it is not proper for a court to assume that “the [plaintiff] can prove facts which [he or she] has not alleged, or that the defendants have violated the . . . laws in ways that have not been alleged.” Assoc.'d Gen. Contractors of California, Inc. v. California State Council of Carpenters, 459 U.S. 519, 526 (1983). A court further need not accept inferences drawn by a plaintiff if they are unsupported by the facts as set forth in the complaint. See California Pub. Employees' Ret. Sys. v. Chubb Corp., 394 F.3d 126, 143 and 157-58 (3d Cir. 2004).
Finally, the United States Court of Appeals for the Third Circuit has held that, in civil rights cases, a court must give a plaintiff the opportunity to amend a deficient complaint - regardless of whether the plaintiff requests to do so - when dismissing a case for failure to state a claim, unless doing so would be inequitable or futile. See Fletcher-Harlee Corp. v. Pote Concrete Contractors, Inc., 482 F.3d 247, 251 (3d Cir. 2007).
C. Analysis
1. Lost property claim
Plaintiff alleges that Defendant Englert performed a cell search and deliberately damaged or discarded items that he had purchased from the ACJ commissary. ECF No. 18 at 7. This claim arises under the Due Process Clause of the Fourteenth Amendment. However, such a claim necessarily fails “if a meaningful post-deprivation remedy is available for the loss.” Hudson v. Farmer, 468 U.S. 517, 533 (1984). This applies to pre-trial detainees as well as convicted prisoners. See Shareef v. Moore, No. 18-1494, 2020 WL 1445878, at *3-4 (W.D. Pa. Mar. 25, 2020), aff'd, 844 Fed.Appx. 487 (3d Cir. 2021) (dismissing due process claims of pre-trial detainee for property confiscated by prison staff).
The United States Court of Appeals for the Third Circuit has held that a prison's grievance procedure provides an adequate post-deprivation remedy. See, e.g., Tillman v. Lebanon County Corr. Fac., 221 F.3d 410, 422 (3d Cir. 2000). This is true even if Plaintiff ultimately is dissatisfied with the outcome of the grievance process. Iseley v. Horn, No. 96-5385, 1996 WL 510090, at *6 (E.D. Pa. 1996). Further, it is well-recognized that an adequate post-deprivation remedy exists in Pennsylvania through a tort lawsuit in state court. Ray v. Rogers, No. 12-985, 2014 WL 1235905, at *3 (W.D. Pa. Mar. 25, 2014).
As such, Plaintiff's allegations related to his personal property is insufficient to state a claim on which relief may be granted under Section 1983, and should be dismissed. Additionally, as it appears that he cannot prevail, dismissal of his federal claim for lost property should be with prejudice to amendment; however, dismissal should be without prejudice to refiling in state court under state law, if appropriate.
2. Sexual comments
Plaintiff alleges that Defendant Englert “forwarded unsolicited talk of a sexual nature” on March 9, 2021. ECF No. 18 at 7. He also asserts “PREA violations in the verbal sense.” Id. These allegations do not state a claim for a constitutional violation. “[V]erbal threats or taunts, without more, are not sufficient to constitute a violation of the Eighth Amendment.” Dunbar v. Barone, 487 Fed.Appx. 721, 723 (3d Cir. 2012) . This includes lewd verbal abuse. See Robinson v. Danberg, 729 F.Supp.2d 666, 678-79 and 686 (D. Del. 2010). See also Hawkins v. Brooks, 694 F.Supp.2d 434, 441 (W.D. Pa. 2010) (internal citations omitted) (“it is well-settled that the use of words, no matter how violent, is not actionable under 42 U.S.C. § 1983”).
Sexual harassment by a corrections officer may state a claim under the Eighth Amendment if (1) it is objectively severe or repetitive; and (2) the corrections officer has a sufficiently culpable state of mind. Danberg, 729 F.Supp.2d at 686 (citing Harris v. Zappan, No. 97-4957, 1999 WL 360203, at *4 (E.D. Pa. May 28, 1999)). “However, a single isolated incident of sexual harassment that is not in and of itself severe, is not sufficiently serious to satisfy the objective component of an Eighth Amendment claim.” Danburg, 729 F.Supp.2d at 686 (citing cases, and holding that allegations that a guard “made sexual advances towards [plaintiff] and sexually harassed [plaintiff] by blowing kisses at him and telling plaintiff he wanted the two of them to engage in sexual acts” did not state a claim under the Eighth Amendment.).
Here, Plaintiff alleges that he was subjected to a single instance of “unsolicited talk of a sexual nature” by Defendant Englert. ECF No. 18 at 7. Plaintiff does not allege that he was touched in any way or injured. Under either a verbal or sexual harassment analysis, these allegations fail to state a viable claim under Section 1983. Thus, Plaintiff's constitutional claims arising out of this occurrence should be dismissed. However, Plaintiff should be granted leave to amend to the extent that he can allege additional facts beyond a single instance of “unsolicited talk of a sexual nature.”
3. Grievances
To the extent that Plaintiff attempts to state a claim for a constitutional deprivation based Defendant Pendel's alleged mishandling of his grievances, the same should be dismissed. It is well-established that inmates have no constitutional right to an effective grievance system. See, e.g., Pittman v. Corbett, No. 14-231, 2014 WL 783498, at *3 (E.D. Pa. 2014) (“[T]o the extent plaintiff's claims are based on the defendant's denials of grievances and/or inadequacies in and dissatisfaction with the grievance process, he has not stated a constitutional claim.”); Robinson v. Prison Health Services, Inc., No. 10-7165, 2014 WL 2452132, at *7 (E.D. Pa. 2014) (dismissing a plaintiff s due process claims because claims based on dissatisfaction with the grievance process fail as inmate does not have a constitutionally protected right to a grievance procedure); Robinson v. Varner, No. 12-6359, 2012 WL 6628108, at *1 (E.D. Pa. 2012) (“[P]laintiff cannot state a constitutional claim based on his dissatisfaction with the grievance process.”).
“[B]ecause a prisoner has no free-standing constitutional right to an effective grievance process [citation omitted], a prisoner cannot maintain a constitutional claim ... based upon [the prisoner's] perception that [the recipient of the grievances] ignored and/or failed to properly investigate his grievances.” Woods v. First Corr. Med. Inc., 446 F. App'x. 400, 403 (3d Cir. 2011). Accordingly, any claims based on Defendant Pendell's handling of Plaintiff's grievance should be dismissed. Dismissal should be with prejudice, as it is apparent that amendment would be futile.
4. Security Designation
It is well-settled law that prisoners have no inherent constitutional right to placement in any particular prison, to any security classification, or to any particular housing assignment. See Olim v. Wakinekona, 461 U.S. 238, 245 (1983); Meachum v. Fano, 427 U.S. 215, 225, (1976); Montayne v. Haymes, 427 U.S. 236, 242 (1976); Bulger v. U.S. Bureau of Prisons, 65 F.3d 48 (5th Cir. 1995); Marchesani v. McCune, 531 F.2d 459 (10th Cir. 1976), cert. denied, 429 U.S. 846, (1976). As such, to the extent that Plaintiff complains of his housing placement at ACJ, ECF No. 18 at 7, his claims based on the same should be dismissed. As amendment would be futile, dismissal should be with prejudice.
5. Personal Involvement
Plaintiff fails to allege any facts involving Defendants Kozlowski, Wiseman, Young, or Fitzgerald. But in order for Section 1983 liability to attach, a plaintiff must show that a defendant was personally involved in the deprivation of his or her federal rights. Evancho v. Fisher, 423 F.3d 347, 353 (3d Cir. 2005). Because Plaintiff has not alleged the personal involvement of any of these Defendants, he fails to state a claim against them, and they should be dismissed. However, dismissal on this basis should be without prejudice to any forthcoming claim based on the alleged interference with his meals, as discussed in more detail in Part II.C.6, infra.
6. Meal Interference
Plaintiff's claim of meal interference is entirely unsupported by factual allegations, and should be dismissed. See Twombly, 550 U.S. at 570; see also Iqbal, 556 U.S. at 678. However, out of an abundance of caution, Plaintiff should be granted leave to file an amended complaint to provide allegations of fact to support this claim, if appropriate.
III. CONCLUSION
Based on the reasons set forth herein, it respectfully is recommended that Plaintiff's claims arising under 42 U.S.C. § 1983 be dismissed sua sponte pursuant to 28 U.S.C. § 1915(e)(2)(B) for failure to state a claim, as follows:
• Plaintiff's federal lost property claim should be dismissed without leave to amend in this Court, but without prejudice to filing a state law claim in state court, if appropriate;
• Plaintiff's claims regarding “unsolicited talk of a sexual nature, ” as well as his scant allegation of “meal tampering, ” should be dismissed, with leave to amend; and
• All other claims should be dismissed with prejudice.
In accordance with the Magistrate Judges Act, 28 U.S.C. § 636(b)(1), and Local Rule 72.D.2, the parties are permitted to file written objections in accordance with the schedule established in the docket entry reflecting the filing of this Report and Recommendation. Objections are to be submitted to the Clerk of Court, United States District Court, 700 Grant Street, Room 3110, Pittsburgh, PA 15219. Failure to timely file objections will waive the right to appeal. Brightwell v. Lehman, 637 F.3d 187, 193 n.7 (3d Cir. 2011). Any party opposing objections may file their response to the objections within fourteen days thereafter in accordance with Local Civil Rule 72.D.2.