Opinion
3:20-cv-220-SLH-KAP
05-03-2022
DWIGHT BOWEN, Plaintiff, v. JOHN WETZEL, et al. Defendants
REPORT AND RECOMMENDATION
KEITH A. PESTO, UNITED STATES MAGISTRATE JUDGE
Plaintiff Bowen is an inmate at S.C.I. Greene subject to the Prison Litigation Reform Act. On December 22, 2020, he filed a 37-page complaint with 151 pages of attachments alleging that 28 employees or agents of the Pennsylvania Department of Corrections violated his civil rights while he was housed at S.C.I. Houtzdale in 2019 and 2020. ECF no. 10. I screened the complaint, found that it failed to state a claim, and granted leave to amend an Eighth Amendment claim in which Bowen alleged he had been exposed on three occasions to human waste. ECF no. 23.
Bowen asked for and was granted an extension of time to file objections or file an amended complaint. Bowen did not, however, object to the Report and Recommendation. He filed an amended complaint on January 31, 2022, ECF no. 26, which supersedes the original complaint.
Technically, the Report and Recommendation at ECF no. 23 is moot, although the court may consider its discussion relevant because Bowen's amended complaint (55 pages long, no attachments), although differing somewhat in format from the original (for instance it contains 15 counts instead of 8 and adds a section titled “The Department's Response to Covid-19 and Day to Day Practices”), substantially repeats the same attempted claims in the same vague and conclusory manner against the same defendants. The amended complaint fails to state a claim and should be dismissed without further leave to amend.
Report
The first issue presented is the propriety of a plaintiff responding to a Report and Recommendation that screens a complaint under the PLRA not by filing objections nor by following the direction of the Report and Recommendation to amend specific parts of the complaint, but rather by submitting another version of the complaint as if the Report and Recommendation had never been. It is a recognized proposition that:
Attempting to raise a new claim for the first time in objections to a magistrate judge's report and recommendation is not proper. Bukovinsky v. Pennsylvania, 455 Fed.Appx. 163, 165-66 (3d Cir. 2011) (per curiam) (citing Marshall v. Chater, 75 F.3d 1421, 1426 (10th Cir. 1996)) (stating that “[i]ssues raised for the first time in objections to the magistrate judge's recommendation are deemed waived”).Stiefel v. Department of Butler County Prison of Pennsylvania, 2018 WL 1123557 at *1 (W.D. Pa. Mar. 1, 2018)(Conti, C.J.). See also Troy v. State Correctional Institute-Pittsburgh, 2013 WL 5511265 at *1 (W.D. Pa. Oct. 4, 2013)(Cercone, J.), also quoting Bukovinsky and adding a citation to In re Consolidated RNC Cases, 2009 WL 130178 at *10 (S.D.N.Y. Jan.8, 2009) for the proposition that for a district judge to review new evidence or arguments raised in objections would “reduce the magistrate's work to something akin to a meaningless dress rehearsal.” It is also black letter law that failure to file specific objections drastically limits appellate review of a Report and Recommendation. Therefore, a litigant who ignores a Report and Recommendation screening a complaint should not be in a more favorable position than one who attempts to comply with it or who files adequate objections to it. A Report and Recommendation is a practical roadmap that notifies a litigant of the defects in a complaint and thereby implicitly tells the litigant how to amend the complaint, but even a litigant who does not understand that still must make specific objections to any part of the Report and Recommendation with which the litigant disagrees. As the Supreme Court held decades ago, this obligatory filing of objections is necessary both as to factual and legal issues. Thomas v. Arn, 474 U.S. 140, 150 (1985).
Therefore, this Report and Recommendation only examines the permitted amendment to the three episodes in which Bowen attempted to allege an Eighth Amendment claim because he was exposed to human waste. ECF no. 26, ¶¶ 225-57 (April 9, 2019), ¶¶ 258-71 (May 27, 2019), and ¶¶ 272-85 (July 9, 2019). The balance of the amended complaint should be dismissed without further discussion because Bowen did not object to the previous analysis finding it inadequate. As to the three episodes under review, since Bowen is proceeding in forma pauperis, the PLRA as codified at 28 U.S.C.§ 1915(e)(2) commands:
(2) Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that -
(A) the allegation of poverty is untrue; or
(B) the action or appeal -
(i) is frivolous or malicious;
(ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief.
At 28 U.S.C.§ 1915A, the PLRA also commands that:
(a) Screening.--The court shall review, before docketing, if feasible or, in any
event, as soon as practicable after docketing, a complaint in a civil action in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity.
(b) Grounds for dismissal.--On review, the court shall identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint-
(1) is frivolous, malicious, or fails to state a claim upon which relief may be granted; or
(2) seeks monetary relief from a defendant who is immune from such relief.
I noted in the screening of the original complaint that the conclusory assertion that all 28 defendants were liable in every attempted claim was improper. That defect has not been remedied: Bowen's partial re-formatting of the amended complaint to use the names of subsets of the defendants instead of “all defendants” still does not comply with Fed.R.Civ.P. 8 or (as to many defendants) permit the court to analyze separately the situation of each defendant who is sued for damages to determine whether that defendant is protected by qualified immunity. See Rouse v. Plantier, 182 F.3d 192, 200 (3d Cir. 1999). In the April 2019 episode, ¶¶ 225-57, Bowen alleges a drain backed up and sewage entered his cell. The plumbing issue was not remedied for several hours, and during this time Bowen alleges that his decision to stand in the inch of contaminated water in his cell was “necessary to show the situation was serious,” ¶252. This decision by Bowen to stand in contaminated water for hours led to what Bowen describes as some minor temporary skin damage, ¶253. Bowen asserts that defendants Rydbom, Acey, Jones, a Lt. John Doe, and Young are liable in ¶225, then all defendants except Young and the Doe defendant drop out of events until ¶257, when defendants Young, Doe, Kovac, and Shea are alleged to be liable. The preceding paragraphs make it clear that Kovac and Shea are alleged to be liable for not preserving evidence of the episode. The Eighth Amendment does not impose a duty to preserve evidence, and if it were ever so interpreted that interpretation would be so novel that Kovac and Shea would be protected by qualified immunity. As for Young and Doe, Bowen asserts (without supporting facts) that they failed to fix the problem quickly enough. Bowen's injury, however, stemmed from his decision that he needed to stand at the cell door to show the situation was serious rather than keep his feet out of the water. Neither Young nor Doe is alleged to have ordered Bowen to stand in contaminated water or to have had any input into Bowen's decision to do so. Bowen does not allege that Young or Doe violated the Eighth Amendment.
To state a valid conditions of confinement claim under the Eighth Amendment, an inmate plaintiff must allege that, objectively, the conditions were so serious that they constituted a denial of the minimal civilized measure of life's necessities and that, subjectively, the prison officials acted with “deliberate indifference.” Farmer v. Brennan, 511 U.S. 825, 837 (1994) defines that subjective element to require allegations permitting the inference that a defendant prison official both knows of and disregards an excessive risk to inmate health or safety. There must be allegations, therefore, that permit the inference that the particular named defendant was aware of facts from which the inference could be drawn that a substantial risk of serious harm to plaintiff existed, and that the defendant in fact drew that inference.
That requires allegations of fact not provided here. At the pleading stage of a civil proceeding, a plaintiff must allege enough facts in the complaint to “nudge” a claim “across the line from conceivable to plausible.” See Ashcroft v. Iqbal, 556 U.S. 662, 683 (2009), quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). As Bell Atlantic Corp. v. Twombly itself stated, it is not acceptable to allow “a claim just shy of a plausible entitlement to relief” to go forward in the hope that it can “be weeded out early in the discovery process through ‘careful case management.'” 550 U.S. 560. See also Edwards v. Balisok, 520 U.S. 641, 649 (1997)(a civil rights claim either is cognizable and should go forward, or it is not cognizable and should be dismissed.) Bowen's inability to point to any fact showing that Young or Doe knew of an excessive risk to Bowen mandates the dismissal of the claim against them.
As for the “2nd Significant Exposure to Bio Hazardous Waste,” ¶¶ 258-71, and the “3rdSignificant Exposure to Bio Hazardous Waste,” ¶¶ 272-85, they can be viewed as a hybrid Farmer v. Brennan claim for failure to protect Bowen from inmates who used their bodily wastes as weapons combined with an unconstitutional conditions claim for failure to clean up the RHU quickly enough. In the May 2019 incident, one person that Bowen identifies as an inmate named Snow used bodily waste as projectiles that splattered in front of plaintiff's cell, ¶258, and in the July 2019 incident several unknown inmates were throwing bodily waste, ¶ 272.
Once again, Bowen fails to allege the deliberate indifference element. In the latter two episodes Bowen “on information and belief” describes several corrections staff members as knowing who was responsible, ¶262, or having “the demeanor” of someone with advance knowledge of the events and who was responsible, ¶277. Bowen lists several defendants without any explanation of their roles at the time of the May and July episodes that would allow any inference that any one of them did in fact know that Snow or a group of unknown inmates would use feces and urine as weapons.
Pleading “on information and belief” is not a substitute for alleging “a good-faith basis in fact.” Kajoshaj v. New York City Dep't of Education, 543 Fed.Appx. 11, 16 (2d Cir. 2013). As Bowen uses it here, it is pure speculation. In the absence of plausible allegations that allow the inference that some named defendant had actual knowledge that Snow (in May) or someone else (in July) was going to use bodily wastes as projectiles on a particular occasion, the subjective element of a claim is missing. To state a Farmer v. Brennan claim it is not adequate for Bowen to allege that the July episode followed the allegedly similar May episode or even that it is generally known that inmates assault each other using bodily waste as weapons, any more than it would be adequate to allege a Farmer v. Brennan claim by alleging that corrections staff are generally aware of the problem of inmates assaulting other inmates with shanks or fists.
As for the objective “excessive risk to health or safety” element, even taking Bowen's allegations as true, there is no allegation that he suffered any injury as a result of either the May 2019 episode or July 2019 episode other than exposure to obviously disgusting sights and smells. There is no allegation that permits the inference that the cleanups were not conducted as reasonably quickly as is consistent with managing prison inmates, much less that any named inmate was deliberately indifferent to the need for a cleanup. Bowen's dissatisfaction with the thoroughness of the cleanup states no claim against anyone.
As before, Bowen bases his claim of liability in large measure on the allegation that defendants discovered who was responsible after the fact but did not effectively punish them, ¶ 261, or comply with Bowen's request for an investigation, ¶ 260. Bowen has no legal right, and certainly none under the Eighth Amendment, to have corrections staff investigate incidents or to punish anyone else. His speculation in ¶262 that defendants Shea, Kovac, Acey, Miller, Lewis, Jones, Poborsky, and Boal “collectively knew” who was responsible for the May episode (inmate Snow, according to Bowen) and that their collective failure to punish Snow caused the July episode is just that, speculation.
The Court of Appeals, in Grayson v. Mayview State Hospital, 293 F.3d 103 (3d Cir.2002) and similar cases, directs district courts to allow plaintiffs in civil rights cases leave to amend unless that amendment is “futile” or “inequitable.” It is inequitable to allow plaintiff further amendment.
Pursuant to 28 U.S.C.§ 636(b)(1), plaintiff can within fourteen days file written objections to this Report and Recommendation. Plaintiff is advised that in the absence of timely and specific objections, any appeal would be severely hampered or entirely defaulted. See EEOC 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).