Opinion
Civil Action No. 17 - 1375
07-18-2018
ORLANDO BAEZ, Plaintiff, v. DR. BYUNGHAK JIN, et al., Defendants.
District Judge David S. Cercone
REPORT AND RECOMMENDATION
I. RECOMMENDATION
It is respectfully recommended that the Motion to Dismiss for Failure to State a Claim (ECF No. 47) filed by Defendants Dr. Laurence Alpert, Dr. Paul Dascani, Dr. Byunghak Jin, PA Esther Mattes, PA Eldon Mwaura and Dr. Min Hi Park (collectively referred to as "the Medical Defendants") be denied.
II. REPORT
Orlando Baez ("Plaintiff"), a pro se inmate, initiated this action by filing a complaint in the Court of Common Pleas of Greene County alleging various claims against numerous correctional and medical personnel employed at the State Correctional Institution at Greene. On October 24, 2017, the case was removed by counsel for the Department of Corrections from the Court of Common Pleas of Greene County to this Court. (ECF No. 1.)
Since the case has been in this Court, Plaintiff has filed an Amended Complaint (ECF No. 7), a Second Amended Complaint (ECF No. 19), and now a Third Amended Complaint (ECF No. 34). In his Third Amended Complaint, Plaintiff alleges that the Medical Defendants violated his rights under the First Amendment to the United States Constitution by failing to provide him with adequate medical care for his serious medical conditions in retaliation for filing grievances and lawsuits.
On May 25, 2018, the Medical Defendants filed a Motion to Dismiss for Failure to State a Claim. (ECF No. 47.) On June 12, 2018, Plaintiff filed a Brief in Opposition. (ECF No. 51.) The Motion is now ripe for disposition.
Plaintiff's first two complaints alleged an Eighth Amendment claim for deliberate indifference to medical needs but the Third Amended Complaint does not. The Medical Defendants filed a Motion to Dismiss the Amended Complaint (ECF No. 15), to which Plaintiff responded by filing a Second Amended Complaint. (ECF No. 19.) A second Motion was filed (ECF No. 22) to which Plaintiff responded by filing the Third Amended Complaint that does not allege an Eighth Amendment claim for deliberate indifference to medical needs against the Medical Defendants. --------
A. Standard of Review
The United States Court of Appeals for the Third Circuit summarized the standard to be applied in deciding motions to dismiss filed pursuant to Rule 12(b)(6):
Under the "notice pleading" standard embodied in Rule 8 of the Federal Rules of Civil Procedure, a Plaintiff must come forward with "a short and plain statement of the claim showing that the pleader is entitled to relief." As explicated in Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), a claimant must state a "plausible" claim for relief, and "[a] claim has facial plausibility when the pleaded factual content allows the Court to draw the reasonable inference that the Defendant is liable for the misconduct alleged." Although "[f]actual allegations must be enough to raise a right to relief above the speculative level," Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007), a Plaintiff "need only put forth allegations that raise a reasonable expectation that discovery will reveal evidence of the necessary element." Fowler, 578 F.3d at 213 (quotation marks and citations omitted); see also Covington v. Int'l Ass'n of Approved Basketball Officials, 710 F.3d 114, 117-18 (3d Cir. 2013).Thompson v. Real Estate Mortg. Network, 748 F.3d 142, 147 (3d Cir. 2014).
When considering pro se pleadings, a court must employ less stringent standards than when judging the work product of an attorney. Haines v. Kerner, 404 U.S. 519, 520 (1972). When presented with a pro se complaint, the court should construe the complaint liberally and draw fair inferences from what is not alleged as well as from what is alleged. Dluhos v. Strasberg, 321 F.3d 365, 369 (3d Cir. 2003). In a § 1983 action, the court must "apply the applicable law, irrespective of whether the 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)). See also Nami v. Fauver, 82 F.3d 63, 65 (3d Cir. 1996) ("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.") (quoting Higgins, 293 F.3d at 688). Notwithstanding this liberality, pro se litigants are not relieved of their obligation to allege sufficient facts to support a cognizable legal claim. See, e.g., Taylor v. Books A Million, Inc., 296 F.3d 376, 378 (5th Cir. 2002); Riddle v. Mondragon, 83 F.3d 1197, 2102 (10th Cir. 1996).
The court must allow amendment by the plaintiff in civil rights cases brought under § 1983 before dismissing pursuant to Rule 12(b)(6), irrespective of whether it is requested, 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 Alston v. Parker, 363 F.3d 229, 235 (3d Cir. 2004) (asserting that where a complaint is vulnerable to dismissal pursuant to 12(b)(6), the district court must offer the opportunity to amend unless it would be inequitable or futile).
B. Applicable Law
It is well settled that retaliation for the exercise of a constitutionally protected activity is itself a violation of rights secured by the Constitution, which is actionable under section 1983. Rauser v. Horn, 241 F.3d 330 (3d Cir. 2001); White v. Napoleon, 897 F.2d 103, 112 (3d Cir. 1990). To make out a First Amendment retaliation claim predicated on 42 U.S.C. § 1983, a plaintiff must establish the following elements: (1) he engaged in protected speech, (2) the defendant took adverse action sufficient to deter a person of ordinary firmness from exercising his First Amendment rights, and (3) the adverse action was prompted by plaintiff's protected speech. Mitchell v. Horn, 318 F.3d 523, 530 (3d Cir.2003).
Once all three criteria are met, the burden then shifts to the defendants "to prove by a preponderance of the evidence that it would have taken the same disciplinary action even in the absence of the protected activity." Rauser, 241 F.3d at 333. This means that "prison officials may still prevail by proving that they would have made the same decision absent the protected conduct for reasons reasonably related to a legitimate penological interest." Id. at 334 (incorporating Turner v. Safley, 482 U.S. 78, 89 (1987)).
C. Discussion
The Medical Defendants move to dismiss Plaintiff's Third Amended Complaint arguing that (1) Plaintiff has failed to set forth a cause of action on any basis because he has lumped all of the Defendants together and has not differentiated as to what each Defendant did or failed to do, and (2) Plaintiff has failed to state a cause of action for retaliation because the Third Amended Complaint fails to set forth the factual predicates for all necessary elements of a retaliation claim. However, viewed in the light of the foregoing liberal pleading standards, and the applicable law regarding retaliation, this Court should find that the allegations in the Third Amended Complaint, when taken as true, allow the Court to draw a reasonable inference that it meets the standards as enunciated in Twombly and Iqbal. It is true that Plaintiff does now always specifically aver which Medical Defendant did what. However, Plaintiff is proceeding pro se and the Court is required, as set forth above, to apply more lenient standards.
Plaintiff avers that he filed numerous grievances and lawsuits against the Medical Defendants. He further avers that, in retaliation for the filing of the grievances and the lawsuits, they have refused to provide him with necessary medical treatment. The Court finds that, at this stage of the proceeding, the allegations are sufficient to set forth a claim for retaliation. In addition, the undersigned is of the opinion that a brief period of discovery will provide more specificity and will bear out the issue of whether or not the Medical Defendants have engaged in retaliation violating Plaintiff's rights pursuant to the First Amendment.
III. CONCLUSION
It is respectfully recommended that the Motion to Dismiss for Failure to State a Claim (ECF No. 47) filed by Defendants Dr. Laurence Alpert, Dr. Paul Dascani, Dr. Byunghak Jin, PA Esther Mattes, PA Eldon Mwaura and Dr. Min Hi Park (collectively referred to as "the Medical Defendants") be denied.
In accordance with the applicable provisions of the Magistrate Judges Act, 28 U.S.C. § 636(b)(1)(B) & (C), and Rule 72.D.2 of the Local Rules of Court, Plaintiff shall have fourteen (14) days from the date of the service of this report and recommendation to file written objections thereto. Plaintiff's failure to file timely objections will constitute a waiver of his appellate rights.
Dated: July 18, 2018.
/s/_________
Lisa Pupo Lenihan
United States Magistrate Judge cc: Orlando Baez
CB3721
SCI Greene
175 Progress Drive
Waynesburg, PA 15370
Counsel for Defendants
(Via CM/ECF electronic mail)