Opinion
3:22-cv-124-KAP
10-21-2022
NIARE LAMAR BROWN, Plaintiff, v. S.C.I. LAUREL HIGHLANDS, et al. Defendants
REPORT AND RECOMMENDATION
KEITH A. PESTO, MAGISTRATE JUDGE
Recommendation
The complaint should be dismissed with leave to amend.
Report
This case may ultimately be a consent case, but it is contrary to the Prison Litigation Reform Act (quoted below) and a waste of court resources to order service on a score of defendants, see if some or all of them consent to my jurisdiction, and then conduct screening.
My pre-service screening of the complaint is filed as a Report and Recommendation because in Burton v. Schamp, No. 18-1174, 2022 WL 405859, 25 F.4th 198 (3d Cir. Feb. 10, 2022), the Court of Appeals held that in cases where the plaintiff or defendant has not consented before judgment to Magistrate Judge jurisdiction under 28 U.S.C.§ 636(b)(1)(C), the appropriate procedure is for the Magistrate Judge to issue a report and recommendation to the District Court which is vested with the authority to dismiss the parties and enter final judgment in the matter. The format is used because regardless of any consent or lack thereof by the plaintiff, for judgment to be entered in favor of a defendant who has not filed a consent prior to judgment the matter must be assigned to a District Judge.
Since plaintiff is proceeding in forma pauperis, 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 immune1
from such relief.
Also applicable to this case is 28 U.S.C.§ 1915A, which 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.
Plaintiff, an inmate at S.C.I. Laurel Highlands proceeding pro se, alleges that on March 17, 2022, plaintiff was “maced” in the face and wrestled to the ground by “many” correctional officers. Plaintiff implies without alleging that this was without cause. He was subsequently taken to medical and then processed to the RHU and deprived of clothing until the following morning. He was not given a shower until March 21, 2022. He filed a grievance. On April 26, 2022, he was taken to F unit. There, correctional officers brought him into a holding cell where a Lieutenant New stated, “I will come in there and pull your throat out if you don't withdraw this grievance now.” The grievance was not withdrawn, and according to plaintiff was upheld in part.
Plaintiff brings this suit against the S.C.I. Laurel Highlands and more than 20 prison employees implicitly asserting their violation of the Eighth Amendment's prohibition of the use of excessive force under Whitley v. Albers, 475 U.S. 312, 320-21 (1986) (corrections officers violate the Eighth Amendment by using force “maliciously and sadistically for the very purpose of causing harm.”)
First, S.C.I. Laurel Highlands is not “person” amenable to a civil rights suit under 42 U.S.C.§ 1983, see Will v. Michigan Dep't of State Police, 491 U.S. 58 (1989) and should be dismissed from this case without leave to amend.
Second, plaintiff names almost every defendant without alleging their role in the alleged use of force, and in fact plaintiff disclaims knowledge about who was involved and asks to have “everyone” involved in the use of force and disciplinary process included as a defendant. However, in order to allege a claim against a defendant in this or any civil rights action pursuant to 42 U.S.C.§ 1983, a plaintiff must allege that the defendant had “personal involvement in the alleged wrongs; liability cannot be predicated solely on the operation of respondeat superior.” Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir.1988). 2 Merely working in the same unit or being present does not support liability either.
Plaintiff's allegations fail to attribute any action at all to any specific defendant with the sole exception of Corrections Officer Bush and Lieutenant New. Bush is mentioned in the complaint without detail, but an exhibit indicates Bush cited plaintiff for refusing to obey an order on March 17, 2022, the date of the use of oleoresin capsicum spray on plaintiff. From the exhibit, Bush himself obviously believed the use of force was not just excusable, but justified. Plaintiff does not allege facts allowing the inference by an impartial observer that Bush used force maliciously and sadistically. Plaintiff can remedy that with more complete allegations. As for all the other officers involved, plaintiff can proceed against a John Doe defendant as long as he alleges a claim against that defendant and describes that defendant with sufficient precision to allow service on and give fair notice of the claim to some person or class of persons. As with Bush, plaintiff must allege facts allowing an inference that their use of force was malicious and sadistic. If plaintiff cannot identify a John Doe with sufficient precision to allow service at this time, he may be able to identify the John Doe during discovery, and the complaint can be amended at that point to name an actual person. The first step, however, is describing why that person's use of force was excessive, malicious, and sadistic.
As for New's alleged threat, it is well settled that verbal harassment of a prisoner, although deplorable, does not violate the Eighth Amendment. Robinson v. Taylor, 204 Fed.Appx. 155, 156 (3d Cir.2006) (collecting cases). As for the First Amendment claim for retaliation, plaintiff likewise alleges a verbal threat with no subsequent impact. After Mitchell v. Horn, 318 F.3d 523, 530 (3d Cir.2003), the three elements of a retaliation claim are: (1) that the plaintiff took some action itself protected by the constitution; (2) that the defendant took adverse action against the plaintiff sufficient to deter a person of ordinary firmness from persisting in his conduct; and (3) that there was a causal connection between the plaintiff's protected conduct and the adverse action. A verbal threat without anything further fails to state the adverse action element.
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.” I cannot say it would be futile or inequitable to permit amendment of this complaint to correct the deficiencies identified herein.
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 3 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). Plaintiff is also given leave to amend his complaint within the same time to correct the defects discussed above. If he chooses to amend the complaint, he must file an amended complaint raising all claims against all parties. Plaintiff can, if he wants, both amend his complaint and file objections. Objecting without amending the complaint will be deemed to be relying on the complaint as presently drafted without any further amendment. 4