Opinion
Civil Action No. 19-1385
10-22-2020
COREY BRACEY, Plaintiff, v. COREY VALENCIA, Corrections Officer I, MCLAREN MEDICAL LABORATORY, M.D. DENNIS W. SPENCER, Laboratory Director, WARD MEDICAL LABORATORY, M.D. WILLIAM G. FINN, Laboratory Director, GARCIA CLINICAL LABORATORY, M.D. LORENZ P. KIELHORN, Laboratory Director, CHRISTOPHER COLGAN, Corrections Officer I, and LIEUTENANT MORRIS, Defendants.
District Judge William S. Stickman
Re: ECF No. 56 REPORT AND RECOMMENDATION
I. RECOMMENDATION
Plaintiff Corey Bracey brings this pro se civil rights pursuant to 42 U.S.C. § 1983 for the alleged violation of his rights in an altercation with corrections officers at the State Correctional Institution - Greene ("SCI - Greene"). Pending before the Court is a Motion to Dismiss Amended Complaint filed on behalf of Defendants Corey Valencia ("Valencia"), Christopher Colgan ("Colgan") and Lieutenant Morris ("Morris") (collectively, "Corrections Defendants"), seeking the dismissal of claims asserted against Colgan and Morris as barred by the applicable statute of limitations and as otherwise inadequately stated. ECF No. 56. On identical grounds, the Corrections Defendants also seek dismissal of Plaintiff's conspiracy claim against all Corrections Defendants.
For the following reasons, it is respectfully recommended that the Motion to Dismiss be denied as to Plaintiff's Eighth Amendment claims against Colgan and Morris but granted as to his cause of action for conspiracy.
II. REPORT
A. FACTUAL AND PROCEDURAL BACKGROUND
On October 17, 2017, Plaintiff was involved in a physical altercation with Defendant Valencia when Plaintiff suffered "mental health episode" after Valencia entered his cell to exchange cell property. ECF No. 39 ¶¶ 24-29. Plaintiff alleges he "blacked out and exited the cell." Id. Valencia and other responding officers, including Colgan, "punched and applied knee strikes to Plaintiff's head" and employed capsicum spray. Plaintiff states he offered no resistance and was shackled and handcuffed with his hands behind his back. At that point, Valencia and Colgan punched Plaintiff repeatedly in the head and face. Id. ¶ 29. Plaintiff acknowledges that during the incident, Corrections Officer Kuzma sustained a bite wound. Id.
Plaintiff alleges that Defendant Morris, acting in his supervisory capacity, ordered Plaintiff to be escorted to the medical unit for treatment. Morris directed that during the escort, Plaintiff was to be shackled, handcuffed, placed in a spit hood, bent over and made to walk backwards. Plaintiff states that he offered no resistance but was "power-driven on his head to the concrete three times and rapidly punched to the face causing head trauma, black eyes, hematomas to the head." Id. ¶ 34. Later, he says, the Corrections Defendants "fabricated their incident reports" claiming that Plaintiff resisted the escort so that force was necessary to gain compliance. Id. ¶ 36.
Plaintiff alleges that an internal Department of Corrections investigation concluded that Defendant Valencia improperly participated in the property exchange and in the escort because of a pre-existing separation order in place for Plaintiff's protection. The investigation also found that the use of force was "avoidable." Id. ¶ 39. In addition, Morris's order that Plaintiff be escorted doubled over and backwards was found to be "counter-conducive," because this type of escort is to be used only for actively combative prisoners. Id. ¶ 37. Plaintiff concedes that criminal assault charges were filed based on his own conduct and, as of the date of this Report and Recommendation, several charges remain pending in the Court of Common Pleas of Greene County, Pennsylvania.
See https://ujsportal.pacourts.us/DocketSheets/CPReport.ashx?docketNumber=CP-30-CR-0000014-2018&dnh=4n%2ft0%2b%2bAomHvcfVBnJ1QuA%3d%3d (last checked October 22, 2020).
Plaintiff commenced this action two years later, on October 17, 2019, when he signed and deposited his initial complaint in the mail. Plaintiff alleged Eighth and Fourteenth Amendment claims against Valencia only, despite also alleging that other corrections officers participated in the altercation and escort. ECF Nos. 1, 8.
"The federal 'prisoner mailbox rule' provides that a document is deemed filed on the date it is given to prison officials for mailing." Pabon v. S.C.I. Mahanoy, 654 F.3d 385, 391 n. 8 (3d Cir. 2011).
Six months later and nearly two and one-half years after the incident at issue, Plaintiff filed his Amended Complaint and added Defendants Colgan and Morris as parties, alleging Eighth Amendment claims against each of them. ECF No. 39 ¶ 55. In addition, as to all three Corrections Defendants, Plaintiff added a civil conspiracy claim for "act[ing] in cahootz of fabricating their incident reports to justify excessive force." Id.
Based on this delay, the Corrections Defendants seek dismissal of Plaintiff's newly added claims on statute of limitations grounds. The Corrections Defendants also argue that Plaintiff's allegations related to Morris individually, as well as his conspiracy allegations, fail to state plausible claims for relief and, in any event, sovereign immunity bars Plaintiff's conspiracy claim against state employees. ECF No. 57.
Plaintiff has filed responses to the Motion to Dismiss, ECF Nos. 78 and 91, and the motion is now ripe for consideration.
B. STANDARD OF REVIEW
1. Motion to Dismiss
In assessing the sufficiency of a complaint pursuant to a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the Court must accept as true all material allegations in the complaint and all reasonable factual inferences must be viewed in the light most favorable to the plaintiff. Odd v. Malone, 538 F.3d 202, 205 (3d Cir. 2008). The Court, however, need not accept bald assertions or inferences drawn by the plaintiff if they are unsupported by the facts set forth in the complaint. See Cal. Pub. Employees' Retirement Sys. v. The Chubb Corp., 394 F.3d 126, 143 (3d Cir. 2004) (citing Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997)). Nor must the Court accept legal conclusions set forth as factual allegations. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). Rather, "[f]actual allegations must be enough to raise a right to relief above the speculative level." Id. (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). Indeed, the United States Supreme Court has held that a complaint is properly dismissed under Fed. R. Civ. P. 12(b)(6) where it does not allege "enough facts to state a claim to relief that is plausible on its face," id. at 570, or where the factual content does not allow 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); see also Phillips v. County of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008) (finding that, under Twombly, "labels, conclusions, and a formulaic recitation of the elements of a cause of action" do not suffice but, rather, the complaint "must allege facts suggestive of [the proscribed] conduct" and that are sufficient "to raise a reasonable expectation that discovery will reveal evidence of the necessary element[s] of his claim").
2. Pro Se Pleadings and Filings
Pro se pleadings and filings, "however inartfully pleaded," must be held to "less stringent standards than formal pleadings drafted by lawyers" Haines v. Kerner, 404 U.S. 519, 520 (1972). If the court can reasonably read pleadings to state a valid claim on which the litigant could prevail, it should do so despite failure to cite proper legal authority, confusion of legal theories, poor syntax and sentence construction, or litigant's unfamiliarity with pleading requirements. Boag v. MacDougall, 454 U.S. 364 (1982); United States ex rel. Montgomery v. Brierley, 414 F.2d 552, 555 (3d Cir. 1969) (A "petition prepared by a prisoner ... may be inartfully drawn and should ... be read 'with a measure of tolerance'"); Freeman v. Department of Corrections, 949 F.2d 360 (10th Cir. 1991). Under our liberal pleading rules, a district court should construe all allegations in a complaint in favor of the complainant. Gibbs v. Roman, 116 F.3d 83 (3d Cir. 1997) (overruled on other grounds); see also Nami v. Fauver, 82 F.3d 63, 65 (3d Cir. 1996) (discussing Fed. R. Civ. P. 12(b)(6) standard); Markowitz v. Northeast Land Co., 906 F.2d 100, 103 (3d Cir. 1990) (same).
But there are limits to the court's procedural flexibility — "pro se litigants still must allege sufficient facts in their complaints to support a claim .... they cannot flout procedural rules — they must abide by the same rules that apply to all other litigants." Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 245 (3d Cir. 2013) (citations omitted). As a result, because Plaintiff is a pro se litigant, this Court will consider the facts and make inferences where it is appropriate.
C. DISCUSSION
1. Statute of Limitations
In the instant Motion to Dismiss, the Corrections Defendants argue that Plaintiff's claims against newly named defendants Colgan and Morris as well as his conspiracy claim are time-barred by the two-year statue of limitations applicable to claims asserted under § 1983. ECF No. 57 at 3-6. In his response in opposition to the Motion to Dismiss, Plaintiff contends that he just learned of Colgan and Morris's participation through discovery in his related criminal proceeding. ECF No. 78. Plaintiff therefore argues that the statute of limitations should be tolled because of the Corrections Defendants' fraudulent concealment of actionable facts. Id. at 2-3. Plaintiff has also provided the Court with copies of a prison grievance he submitted to facility officials on October 24, 2017. ECF No. 91 at 2 (citing ECF No. 78-1 at 2-5). The grievance apparently was finally resolved on May 18, 2018. Id.
Generally, "a statute of limitations defense cannot be used in the context of a Rule 12(b)(6) motion," but "'an exception is made where the complaint facially shows noncompliance with the limitations period and the affirmative defense clearly appears on the face of the pleading.'" McCracken v. Ford Motor Co., 588 F. Supp. 2d 635, 642 (E.D. Pa. 2008) (quoting Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1385 n.1 (3d Cir. 1994), abrogated on other grounds by Rotkiske v. Klemm, 890 F.3d 422, 428 (3d Cir. 2018)). In this case, the Court's review is not limited to the pleadings, but includes exhibits filed in opposition to various pending motions. Such review raises the likelihood that the applicable statute of limitations was tolled during the pendency of Plaintiff's grievance proceedings related to the incident at issue.
To that end, Plaintiff purports to state a claim for violating his civil rights pursuant to 28 U.S.C. § 1983. The timeliness of a § 1983 claim is governed by the limitations period applicable to personal injury actions of the state where the cause of action arose. Kach v. Hose, 589 F.3d 626, 634 (3d Cir. 2009). Pennsylvania law requires personal injury claims to be brought within two years of the accrual of the claim. 42 Pa. Cons. Stat. § 5524(7). Pennsylvania law also provides that "[w]here the commencement of a civil action or proceeding has been stayed by a court or by statutory prohibition, the duration of the stay is not a part of the time within which the action or proceeding must be commenced." 42 Pa. Cons. Stat. § 5535(b) (emphasis added).
As relevant here, the Prisoner Litigation Reform Act ("PLRA"), 42 U.S.C. § 1997e, provides that "[n]o action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a). The United States Court of Appeals for the Third Circuit has held that the statute of limitations is tolled while an inmate exhausts his administrative remedies. "There is no ambiguity in the PLRA: it is clearly a statutory prohibition that prevents a prisoner from filing § 1983 actions until the prisoner exhausts all administrative remedies. 42 U.S.C. § 1997e(a)." Pearson v. Sec'y Dep't of Corr., 775 F.3d 598, 603 (3d Cir. 2015). See also Jackson v. Rodriguez, 728 F. App'x 78, 79 (3d Cir. 2018) ("[a]s there is a question whether the statute of limitations was tolled while [plaintiff] exhausted administrative remedies, sua sponte dismissal of the complaint was unwarranted").
The applicable Inmate Grievance System of the Pennsylvania Department of Corrections ("DOC") is governed by Administrative Directive 804 ("DC-ADM 804"). The grievance process consists of three steps: (1) initial review by a Grievance Officer of an inmate grievance; (2) appeal to the Facility Manager to review the decision of the Grievance Officer; and (3) final review or appeal to the Secretary's Office of Inmate Grievance Appeals ("SOIGA") to review the decision of the Facility Manager. See DC-ADM 804 (April 27, 2015); see also Smith v. Sec'y of the Pa. Dep't of Corr., 747 F. App'x. 101, 103-104 (3d Cir. 2018) (discussing the three-step grievance process set forth in DC-ADM 804). DC-ADM 804 provides that "[t]he 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 § 1.A.8.
From the exhibits filed in this matter, it appears that Plaintiff began the grievance review process on October 24, 2017, and that the process was completed on May 18, 2018, when the SOIGA issued its decision. ECF No. 78-1. Thus, Pennsylvania's two-year statute of limitations was tolled until May 11, 2018 (after subtracting the seven days between the incident on October 17, 2017 and filing of his administrative grievance). On this record and at this stage of the litigation, the Amended Complaint, filed on April 1, 2020, appears timely. As a result, Plaintiff's conspiracy claims against the Corrections Defendants and his separate claims against Morris and Colgan are not barred by Pennsylvania's statute of limitations. Therefore, it is recommended that the Court deny the Motion to Dismiss based on this basis.
Given the Court's recommended disposition, the Court need not reach Plaintiff's arguments that the Corrections Defendants' fraudulent concealment tolled his conspiracy claim as well as his Eighth Amendment claims against Colgan and Morris.
2. Conspiracy Claim
Apart from the statute of limitations, the Corrections Defendants challenge Plaintiff's conspiracy claim raising: (1) the sufficiency of Plaintiff's allegations, and (2) sovereign immunity. ECF No. 57 at 7-8.
To state a civil conspiracy claim, a plaintiff must prove that two or more persons acting under color of state law conspired to deprive him of a constitutional right. Laurensau v. Romarowics, 528 F. App'x. 136, 140 (3d Cir. 2013). "[M]ere conclusory allegations of deprivations of constitutional rights are insufficient to state a conspiracy claim." Tindell v. Beard, 351 F. App'x. 591, 594 (3d Cir. 2009); and see Abbott v. Latshaw, 164 F.3d 141, 148 (3d Cir.1998) ("[u]nder the notice-pleading standard, a complaint must include more than 'conclusory allegations of concerted action....' It must also contain at least some facts which could, if proven, permit a reasonable inference of a conspiracy to be drawn."). Thus, the plaintiff "must provide some factual basis to support the existence of the elements of a conspiracy: agreement and concerted action." Capogrosso v. The Supreme Court of the State of New Jersey, 588 F.3d 180, 184-85 (3d Cir. 2009).
Here, Plaintiff alleges only that the Corrections Defendants acted in "cahootz" and "fabricated their incident reports" to justify the use of excessive force. ECF No. 39 ¶¶ 36, 54; ECF No. 78. Such allegations are not sufficiently specific to support the required elements of agreement and concerted action. Accordingly, it is recommended that the Court grant the Motion to Dismiss Plaintiff's conspiracy claim. Given Plaintiff's pro se status, it is further recommended that Plaintiff be granted leave to file a Second Amended Complaint to correct the identified deficiencies, if possible.
Because of the Court's recommended disposition, it is not necessary to resolve the Corrections Defendants' argument that the conspiracy claim is barred by the Eleventh Amendment's grant of immunity. However, it is noted that §1983 conspiracy claims against state officials in their individual capacity are not barred by the Eleventh Amendment. See Wongus v. Corr. Emergency Response Team, 389 F. Supp. 3d 294, 299 (E.D. Pa. 2019) ("The Eleventh Amendment does not bar claims against a state officer in his official capacity for prospective injunctive relief or claims against state officials in their individual capacity for money damages.") (emphasis added); and see Kost v. Dep't of Pub. Welfare of PA, No. 07-2404, 2009 WL 466166, at *4 (E.D. Pa. Feb. 24, 2009) (same). Here, Plaintiff does not appear to allege claims against the Corrections Defendants in their official capacity and thus Plaintiff's conspiracy claims would not be barred on Eleventh Amendment grounds. --------
3. Claims against Morris
The Corrections Defendants also seek dismissal of Plaintiff's Section 1983 Eighth Amendment claim against Defendant Morris for failing to allege facts sufficient to state a claim against him. ECF No. 57 at 6-7. To state a Section 1983 claim, "[a] defendant in a civil rights action must have personal involvement in the alleged wrongs; liability cannot be predicated solely on the operation of respondeat superior. Personal involvement can be shown through allegations of personal direction or of actual knowledge and acquiescence. Allegations of participation or actual knowledge and acquiescence, however, must be made with appropriate particularity." Rode v. Dellarciprete, 845 F.2d 1195, 1207-08 (3d Cir. 1988) (internal citations omitted).
In the Amended Complaint, Plaintiff alleges that Morris, while acting in a supervisory capacity, directed the responding officers to escort Plaintiff to the medical unit while shackled, handcuffed, in a spit hood, walking backwards and doubled over. ECF No. 39 ¶ 33. Plaintiff alleges that Morris's instruction led to the added use of force because it was "extremely difficult if not impossible to walk ... [while] trying to keep up with officers." Id. ¶¶ 33, 34.
The Corrections Defendants seek dismissal of Plaintiff's claim against Morris because, according to counsel, "the only other references to Defendant Morris in any allegations in the Amended Complaint identifies him as having given 'supervisory direction' to take Plaintiff for medical triage and as having made an incident report subsequent to the at-issue incident." ECF No. 57 at 6. In so representing the record and Plaintiff's allegations, counsel omits reference to paragraphs 33 and 34 of the Amended Complaint. Accepting this as inadvertent oversight, the Amended Complaint, read in the light most favorable to Plaintiff - as it must be at this stage of the litigation - sufficiently alleges Defendant Morris's personal direction regarding positioning Plaintiff to render him unable to walk or keep up so as to lead to the additional and excessive use of force. Under these circumstances, it is recommended that the Court deny the Motion to Dismiss as to Defendant Morris based on the lack of personal involvement in the violation of Plaintiff's Eighth Amendment rights.
D. CONCLUSION
For the foregoing reasons, it is respectfully recommended that the Motion to Dismiss, ECF No. 56, be denied as to Plaintiff's claims against Colgan and Morris but granted as to Plaintiff's conspiracy claim. It is also recommended that Plaintiff be granted leave to file a Second Amended Complaint within thirty (30) days to correct the deficiencies identified with regard to his conspiracy claim if possible.
In accordance with the Magistrate Judges Act, 28 U.S.C. § 636(b)(1), and Local Rule 72.D.2, the parties may 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 respond to the objections within fourteen (14) days thereafter in accordance with Local Civil Rule 72.D.2.
Respectfully submitted,
/s/ Maureen P . Kelly
UNITED STATES MAGISTRATE JUDGE Dated: October 22, 2020 cc: The Honorable William S. Stickman
United States District Judge
All counsel of record by Notice of Electronic Filing
Corey Bracey
GS 4754
SCI Phoenix
1200 Mokychic Road
Collegeville, Pa 19426