Opinion
Civil Action No. 17 - 1375
07-20-2018
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 Partial Motion to Dismiss for Failure to State a Claim (ECF No. 40) filed by Defendants Corrections Officers Angelo Brown, Robert Derry, Scott George, and Terry Harouse; Registered Nurse Rick Frazer; and Registered Nurse Louis King (collectively referred to as "the DOC Defendants") be granted.
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 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 April 23, 2018, the DOC Defendants filed a Partial Motion to Dismiss for Failure to State a Claim. (ECF No. 40.) On May 9, 2018, Plaintiff filed a Brief in Opposition. (ECF Nos. 43-44.) 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 DOC Defendants filed a Partial Motion to Dismiss the Amended Complaint (ECF No. 10), to which Plaintiff responded by filing a Second Amended Complaint (ECF No. 19). A second Motion was filed (ECF No. 26) to which Plaintiff responded by filing the Third Amended Complaint that does not allege an Eighth Amendment claim for deliberate indifference against the DOC 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. Discussion
The DOC Defendants move for Partial Dismissal of Plaintiff's Third Amended Complaint arguing that Plaintiff has failed to set forth a cause of action for deliberate indifference to a serious medical need. The Motion does not move to dismiss any claims for retaliation. In his Response, Plaintiff argues that he has stated a claim for deliberate indifference. The Court has not set forth the law as to an Eighth Amendment deliberate indifference claim because no place in Plaintiff's Third Amended Complaint does he make any allegation that any defendants, including the DOC Defendants, acted with deliberate indifference. Paragraph 30 of the Third Amended Complaint states: "Plaintiff is pursuing a retaliation claim against these defendants." (emphasis in original). Paragraph 31 of the Third Amended Complaint states: "Plaintiff is pursuing a retaliation claim and/or a claim pursuant to the First Amendment against these defendants." (emphasis in original). Paragraph 31 of the Third Amended Complaint states: " The acts of retaliation conduct referenced in the Complaint...." (emphasis in original).
Count One as to ALL DEFENDANTS references only a claim for retaliation. There are no subsequent counts and at no time does Plaintiff mention a claim for deliberate indifference. Therefore, the Court finds that Plaintiff has dropped his deliberate indifference claim and this motion is perhaps moot. However, in an effort to make sure the record is clear the undersigned will recommend that the Partial Motion to Dismiss the claims of deliberate indifference be granted.
The court of appeals in Phillips v. County of Allegheny has ruled that if a district court is dismissing a claim pursuant to 12(b)(6) in a civil rights case, it must sua sponte "permit a curative amendment unless such an amendment would in inequitable or futile." 515 F.3d 224, 245 (3d Cir. 2008). The Court in this matter is recommending dismissal with prejudice and without granting leave to amend because it believes such amendment would be futile. Plaintiff, a frequent and experienced litigant, has already amended his complaint three times. He has elected to proceed with a retaliation claim. It is further the Court's opinion that any deliberate indifference claim against the DOC Defendants would not state a claim under the facts alleged, which are already very specific and numerous.
CONCLUSION
It is respectfully recommended that the Partial Motion to Dismiss for Failure to State a Claim (ECF No. 40) filed by Defendants Corrections Officers Angelo Brown, Robert Derry, Scott George, and Terry Harouse; Registered Nurse Rick Frazer; and Registered Nurse Louis King (collectively referred to as "the DOC Defendants") be granted.
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 20, 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)