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Blake v. Entero

United States District Court, W.D. Pennsylvania
May 3, 2023
Civil Action 23-604 (W.D. Pa. May. 3, 2023)

Opinion

Civil Action 23-604

05-03-2023

DAVID FRANCIS BLAKE, Plaintiff, v. H. ENTERO, MEDICAL DIRECTOR; R. SOLOMAN, MCD. SERVICES; A. MILLER, NURSING SUPERVISORS; E. SIMPSON, HEALTH CARE ADMIN.; and MEDICAL SERVICE'S DOC OF PENNSYLVANIA, Defendants.


Re: ECF No. 9

Robert J. Colville, 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. 9, be dismissed sua sponte pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim on which relief may be granted. All claims against Defendant Medical Service's DOC of Pennsylvania should be dismissed with prejudice. All other claims should be dismissed without prejudice to the filing of an amended complaint.

II. REPORT

A. Factual and Procedural Background

Plaintiff David Frances Blake (“Plaintiff') initiated this matter by submitting a Complaint for Violation of Civil Rights (“Complaint”), ECF No. 1, without filing fee of motion for leave to proceed in forma pauperis (“IFP”). At the time of filing, Plaintiff was a state prisoner incarcerated at the State Correctional Institution at Greene (“SCI-Greene”) in Waynesburg, Pennsylvania. In forma pauperis status was granted on April 28, 2023. ECF No. 8. The Complaint was formally filed the following day. ECF No. 9.

On April 13, 2023, Plaintiff informed this Court that he would be released from prison on April 25, 2023. ECF No. 7 at 1. A search of the Pennsylvania Department of Corrections parolee indicator webpage confirms his release. See https://inmatelocator.cor.pa.gov/#/ (last visited on May 3, 2023).

While the Complaint is short on facts, it appears that Plaintiff alleges that he was denied necessary medical care because he was scheduled to be released from prison soon. ECF No. 9 at 5-7; ECF No. 9-1 at 1. He does not allege in the Complaint that any named Defendant denied him medical care. He indicates that he submitted a second-level institutional grievance on April 9, 2023 - the date on which the Complaint was signed, and one day prior to the date of the postmark on the envelope in with the Complaint was mailed. ECF No. 9 at 7 and 11; ECF No. 1-2 at 1.

B. Applicable 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 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. 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). 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).

The United States Court of Appeals for the Third Circuit has held that, when determining whether to dismiss a complaint for failing to state a claim upon which relief can be granted, a district court should apply a two-part test in order to determine whether a pleading's recitation of facts is sufficient. Fowler v. UPMC Shadyside, 578 F.3d 203 (3d Cir. 2009). “First, the factual and legal elements of a claim should be separated. The District Court must accept all of the complaint's well-pleaded facts as true, but may disregard any legal conclusions.” Id. at 210-11 (citing Iqbal, 556 U.S. at 678). “Second, a District Court must then determine whether the facts alleged in the complaint are sufficient to show that the plaintiff has a “plausible claim for relief.” Fowler, 578 F.3d at 211 (quoting Iqbal, 556 U.S. at 679).

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. Emp.s' Ret. Sys, v. Chubb Corp., 394 F.3d 126, 143 (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. Legal Analysis

1. Defendant Medical Service's DOC of Pennsylvania should be dismissed with prejudice.

In order to plead a viable claim under 42 U.S.C. § 1983, a plaintiff must meet two threshold requirements. First, the alleged misconduct giving rise to the cause of action must have been committed by a person acting under color of state law; and second, the defendant's conduct must have deprived the plaintiff of rights, privileges, or immunities secured by the Constitution or laws of the United States. Parratt v. Taylor, 451 U.S. 527, 535 (1981), (overruled in part on other grounds, Daniels v. Williams, 474 U.S. 327, 330-331 (1986)).

The Court interprets Plaintiffs invocation of “Defendant Medical Service's DOC of Pennsylvania, ” to relate to the Pennsylvania Department of Corrections. ECF No. 9 at 1. Simply put, as an agency of the Commonwealth of Pennsylvania, the “Medical Service's DOC of Pennsylvania, ” is not a “person” within the meaning of Section 1983. See Will v. Michigan Dep't of State Police, 491 U.S. 58, 71 (1989) (state not person under Section 1983). As an agency of the Commonwealth, Defendant Medical Service's DOC of Pennsylvania further enjoys immunity from Plaintiffs Section 1983 claims under the Eleventh Amendment to the United States Constitution. Quern v. Jordan, 440 U.S. 332, 340-341 (1979). Any federal constitutional claims against Defendant Medical Service's DOC of Pennsylvania should be dismissed with prejudice.

2. It is clear from the face of the Complaint that Plaintiff has failed to exhaust his claims.

As the United States Court of Appeals for the Third Circuit has explained:

The [Prison Litigation Reform Act] requires inmates to exhaust prison grievance procedures before suing in court. 42 U.S.C. § 1997e(a). “[T]o properly exhaust administrative remedies prisoners must ‘complete the administrative review process in accordance with applicable procedural rules, ' rules that are defined not by the PLRA, but by the prison grievance process itself.” [Jones v. Bock, 549 U.S. 199, 218 (2007)] (quoting [Woodford v. Ngo, 548 U.S. 81, 88 (2006)]).
Robinson v. Sup't Rockview SCI, 831 F.3d 148, 153 (3d Cir. 2016). Sua sponte dismissal for failure to exhaust may be warranted when a plaintiff expressly concedes that failure on the face of the complaint. Caiby v. Haidle, 785 F.App'x. 64, 65 (3d Cir. 2019) (citing Ray v. Kertes, 285 F.3d 287, 293 n.5 (3d Cir. 2002).

In order to properly exhaust, Department of Corrections Policy DC-ADM 804 requires an inmate to complete three stages: (1) initial review; (2) appeal; and (3) final review. See Inmate Grievance System Policy DC-ADM 804 (available at https://www.cor.pa.gov/About%20Us/Documents/DOC%20Policies/804%20Inmate%20Grievan ces.pdf (last visited May 3, 2023)); Smith v. Sec'y of Pa. Dep't of Corrs, 2018 WL 279363, at *2 (W.D. Pa. Jan. 3, 2018).

According to the policy, first, within fifteen working days of the incident, the inmate must “submit a grievance to the Facility Grievance Coordinator/designee, usually the Superintendent's Assistant, within 15 working days after the event upon which the claim is based[, ]” DC-ADM 804 § 1 .A.8, who, in turn, must respond in writing within fifteen business days, id. § 1 .C.5.g. Second, if the inmate disagrees with the response, he may appeal to the Facility Manager within fifteen working days; the Facility Manager then has fifteen working days to respond to the appeal. DC-ADM 804 §§ 2.A.1.a and 2.A.2.d(1). Finally, if the inmate remains dissatisfied, he has fifteen working days to appeal to the Secretary's Office of Inmate Grievances and Appeals (“SOIGA”), which then must issue a final determination within thirty working days. DC-ADM 804 §§ 2.B.1 .b and 2.B.2.a(1).

Here, it is clear from the face of the Complaint that Plaintiff has not completed the second stage of the grievance process. Instead, he initiated that step the same date on which the Complaint was signed, and a day prior to the postmark on the envelope in which the Complaint was mailed to this Court. ECF No. 9 at 7 and 11; ECF No. 1-2 at 1. Accordingly, the Complaint should be dismissed due to Plaintiffs failure to exhaust his claims.

However, in light of Plaintiff s recent release from prison, Plaintiff can cure his failure to exhaust simply by filing an amended complaint that relates back to his initial complaint. Garrett v. Wexford Health, 938 F.3d 69, 85 and n.20 (3d Cir. 2019). Accordingly, dismissal on this basis should be without prejudice to filing an amended complaint. Fletcher-Harlee, 482 F.3d at 251.

3. Plaintiff has failed to plead personal involvement or supervisory liability of any individual Defendant.

Liability under Section 1983 attaches only when a plaintiff shows 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). In cases involving a supervisory or reviewing defendant, personal involvement may be shown through “allegations of personal direction or of actual knowledge and acquiescence.” Id. (quoting Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988)). In situations where a supervising official knowingly permits a continuing custom or policy that results in harm to a plaintiff, Section 1983 liability may attach. See Colburn v. Upper Darby Twp, 838 F.2d 663, 673 (3d Cir. 1988) (overruled in part on other grounds by Leatherman v. Tarrant Cnty. Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 168 (1993)). At a minimum, liability in such a case is appropriate “only where there are both (1) contemporaneous knowledge of the offending incident or knowledge of a prior pattern of similar incidents, and (2) circumstances under which the supervisor's inaction could be found to have communicated a message of approval to the offending subordinate.” Colburn, 838 F.2d at 673 (quoting Chinchello v. Fenton, 805 F.2d 126, 133 (3d Cir. 1986)).

Here, Plaintiff has failed to make any allegations of fact with respect to any individual Defendant. As such, the Complaint should be dismissed on this additional basis. However, as amendment would not necessarily be futile, Plaintiff should be granted leave to file an amended complaint raising factual allegations of how each Defendant was personally involved in PlaintifF s alleged constitutional deprivation.

III. CONCLUSION

Based on the reasons set forth herein, it is respectfully recommended that the Complaint, ECF No. 9, be dismissed sua sponte pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim on which relief may be granted. All claims against Defendant Medical Service's DOC of Pennsylvania should be dismissed with prejudice. All other claims should be dismissed without prejudice to the filing of an amended complaint.

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.


Summaries of

Blake v. Entero

United States District Court, W.D. Pennsylvania
May 3, 2023
Civil Action 23-604 (W.D. Pa. May. 3, 2023)
Case details for

Blake v. Entero

Case Details

Full title:DAVID FRANCIS BLAKE, Plaintiff, v. H. ENTERO, MEDICAL DIRECTOR; R…

Court:United States District Court, W.D. Pennsylvania

Date published: May 3, 2023

Citations

Civil Action 23-604 (W.D. Pa. May. 3, 2023)

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