Opinion
1:23-cv-270
01-02-2024
JOHN BUTLER, Plaintiff v. JOHN WETZEL, et al., Defendants
SUSAN PARADISE BAXTER, United States District Judge
REPORT AND RECOMMENDATION
RICHARD A. LANZILLO, Chief United States Magistrate Judge
MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
I. Recommendation
It is hereby recommended that the motion for leave to proceed in forma pauperis [ECF No. 1] be GRANTED, and the Clerk should be ordered to docket the Complaint.
It is further recommended that this action be dismissed as legally frivolous and/or for failure to state a claim in accordance with 28 U.S.C. § 1915(e).
II. Report
A. Motion for leave to proceed in forma pauperis
Plaintiff John Butler, an inmate incarcerated at SCI-Albion, initiated this prose civil rights action by filing a motion for leave to proceed in forma pauperis. ECF No. 1. In his motion, Plaintiff states that he is unable to pay the filing fee associated with this case. Based upon this averment and a review of his institutional account statement, see ECF No. 4, it appears that Plaintiff is without sufficient funds to pay the costs and fees of the proceedings. Accordingly, his motion for leave to proceed in forma pauperis should be granted.
B. Standard of review
Because he is seeking leave to proceed in forma pauperis, Plaintiff is subject to the screening provisions in 28 U.S.C. § 1915(e). Among other things, that statute requires the Court to dismiss any action in which the Court determines that the action is “frivolous or malicious; fails to state a claim upon 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); Muchler v. Greenwald, 624 Fed.Appx. 794, 796-97 (3d Cir. 2015). A frivolous complaint is one which is either based upon an indisputably meritless legal theory (such as when a defendant enjoys immunity from suit) or based upon factual contentions which are clearly baseless (such as when the factual scenario described is fanciful or delusional). Neitzke v. Williams, 490 U.S. 319, 327 (1989). The determination as to whether a complaint fails to state a claim upon which relief may be granted is governed by the same standard applicable to motions to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure. D'Agostino v. CECOM RDEC, 436 Fed.Appx. 70, 72 (3d Cir. 2011) (citing Tourscher v. McCullough, 184 F.3d 236, 240 (3d Cir. 1999)).
Because Plaintiff is proceeding pro se, his allegations, “however inartfully pleaded,” must be held to “less stringent standards than formal pleadings drafted by lawyers.” Haines v. Kerner, 404 U.S. 519, 520-521 (1972). Moreover, under the liberal pleading rules, during the initial stages of litigation, 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).
C. Background
In the instant case, Plaintiff avers that he purchased a typewriter from Swintec Corporation, a private company that supplies products and goods to prisons for sale to inmates, for $477.75. ECF No. 1-1 ¶ 4. When the typewriter arrived on June 11, 2021, Plaintiff rejected it. Id. ¶ 5. A staff member immediately returned it to Swintec. Id. Despite the efforts of Plaintiff and his family to contact Swintec, the Better Business Bureau, and the New Jersey Division of Consumer Affairs, his money has not been refunded. Id. ¶¶ 6-11.
The named Defendants in the instant action are John Wetzel, the former Secretary of the Department of Corrections (DOC), and Michael Clark, the facility manager at SCI-Albion. Plaintiff alleges that Wetzel “entered into a contract with Swintec Corp., and should have ensured the return of Plaintiffs funds when Swintec received their property.” Id. ¶ 12. He similarly alleges that Clark “has custody of Plaintiff s account and should have ensured that the Plaintiffs funds were returned to his account when Swintec Corp, received their property.” Id. ¶ 13. He maintains that the confiscation of his funds, without a hearing or just cause, violated his due process rights under the Eighth and Fourteenth Amendments. Id. ¶ 14.
D. Analysis
Plaintiffs claims are subject to dismissal pursuant to § 1915 for several reasons. Each will be discussed below.
1. Personal involvement
At the outset, the Court notes that Plaintiff has an obvious remedy if he believes that Swintec has stolen funds from him: he can file a conversion action against Swintec in state court. It is unclear whether Plaintiff has pursued this remedy. By electing to proceed in federal court, however, Plaintiff is bound by the standards applicable to actions pursuant to 42 U.S.C. § 1983, one of which is that the allegedly unconstitutional action “was committed by a person acting under color of state law.” West v. Atkins, 487 U.S. 42, 48 (1988). Swintec, a private corporation, does not satisfy this requirement. See, e.g., Berry v. Sellers, 2023 WL 2647089, at *2 (E.D. Pa. Mar. 27, 2023) (“Several courts have concluded that vendors . . . who sell products to prisoners, are not acting under color of state law.”) (collecting cases).
Presumably recognizing this principle, Plaintiff has elected to sue two DOC officials, Wetzel and Clark, in lieu of the party that allegedly wronged him. This attempt to end-run the state actor requirement runs afoul of another required element for § 1983 relief: that each defendant must have played an “affirmative part” in the complained-of misconduct. Ashcroft v. Iqbal, 556 U.S. 662, 677 (2009) (“In a § 1983 suit... [a]bsent vicarious liability, each Government official, his or her title notwithstanding, is only liable for his or her own misconduct.”). As this Court has repeatedly noted, a successful § 1983 plaintiff “must show that each and every defendant was ‘personal [ly] involve[d]' in depriving him of his rights.” Butler v. Sissem, 2022 WL 504941, at *3 (W.D. Pa. Feb. 18, 2022) (quoting sources omitted). In the absence of specific allegations that a defendant played a role in depriving the plaintiff of a constitutional right, dismissal is appropriate. See, e.g., Mearin v. Swartz, 951 F.Supp.2d 776, 781-82 (W.D. Pa. 2013) (dismissing claims pursuant to Rule 12(b)(6) because the plaintiffs had failed to set forth sufficient facts to establish that certain defendants had played an affirmative part in the alleged Eighth Amendment violation).
These principles apply with equal force where the defendants are supervising prison officials. See, e.g., Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1998) (noting that liability for supervisory officials must still be based on “personal involvement in the alleged wrongs”); Evancho v. Fisher, 423 F.3d 347, 353 (3d Cir. 2005) (“[L]iability cannot be predicated solely on the operation of respondeat superior.”). Although a supervisor cannot encourage constitutional violations, “a supervising public official has [no] affirmative constitutional duty to supervise and discipline so as to prevent violations of constitutional rights by his or her subordinates.” Chinchello v. Fenton, 805 F.2d 126, 133 (3d Cir. 1986); Brown v. Grabowski, 922 F.2d 1097, 1120 (3d Cir. 1990). Rather, a supervisor-defendant may only be liable for unconstitutional acts undertaken by subordinates if the supervisor either: (1) with deliberate indifference to the consequences, established and maintained a policy, practice or custom which directly caused [the] constitutional harm; or (2) participated in violating the plaintiffs rights, directed others to violate them, or, as the person in charge, had knowledge of and acquiesced in the subordinate's unconstitutional conduct. A.M. ex rel. J.M.K. v. Luzerne Cty. Juvenile Det. Ctr., 372 F.3d 572, 586 (3d Cir. 2004).
Here, Plaintiffs only substantive allegation against Wetzel and Clark is that, while performing their supervisory functions in the DOC hierarchy, they “allowed Swintec Corp, to confiscate the Plaintiffs funds, without any hearing or just cause.” ECF No. 1-1 ¶ 14. This type of conclusory averment of supervisory liability is plainly insufficient to state a claim for relief. Indeed, it is unclear whether Wetzel or Clark were ever even made aware of Plaintiff s loss. He does not plead any such knowledge in his complaint, and a review of the attached grievances does not indicate that Wetzel or Clark were involved in the administrative review process. Under such circumstances, dismissal for lack of personal involvement is appropriate.
2. Due process
Even if Plaintiff could establish the personal involvement of either Defendant, his claim would still fail. To state a due process claim, Plaintiff must show not only that his property was taken, but that he was not afforded a post-deprivation administrative remedy. As one court in this district recently explained:
The unauthorized intentional deprivation of property by a prison official, as has been alleged here, however, does not violate the Due Process Clause where the inmate has a meaningful post-deprivation remedy available to him. Monroe v. Beard, 536 F.3d 198, 210 (3d Cir.2008), quoting Hudson v. Palmer, 468 U.S. 517, 533, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984). Thus, in order to succeed on a due process claim, an inmate must not only show that his property was confiscated but that he was not afforded a post-deprivation administrative remedy. Ball v. Campbell, 2011 WL 7080692, at *7 (M.D. Pa. Dec 9, 2011), R & R adopted as the Opinion of the Court in 2012 WL 201846 (M.D.Pa. Jan. 23, 2012). The United States Court of Appeals for the Third Circuit has found that adequate post-deprivation remedies include the ability to file a
state tort action or use of the prison's grievance process. Tapp v. Proto, 404 Fed.Appx. 563, 567 (3d Cir. 2010); Tillman v. Lebanon Cnty. Corr. Fac., 221 F.3d 410, 422 (3d Cir. 2000). The existence of either of these post-deprivation remedies therefore ‘forecloses any due process claim ... even if [the] inmate is dissatisfied with the result of the process.' Iseley v. Horn, 1996 WL 510090, at * 6 (E.D.Pa. Sept. 3, 1996), citing Austin v. Lehman, 893 F.Supp. 448, 454 (E.D.Pa. 1995). See Pettaway v. SCI Albion, 2012 WL 366782, at *3-*4 (W.D.Pa. Feb. 2, 2012).Mearin v. Folino, 2013 WL 5332120, at *7 (W.D. Pa. 2013).
There is no question that the DOC has implemented an appropriate grievance system and that Plaintiff availed himself of that process. See ECF No. 1-7. Courts in the Third Circuit have routinely held that the DOC's grievance system satisfies the Due Process Clause. See, e.g., Spencer v. Bush, 543 Fed.Appx. 209, 213 (3d Cir. 2013). Plaintiff cannot sustain a due process claim simply because he does not agree with the outcome of the investigation into his grievance. See, e.g., Mincy v. Chmielsewski, 508 Fed.Appx. 99, 104 (3d Cir. 2013) (“[A]n officer's review of, or failure to investigate, an inmate's grievances generally does not satisfy the requisite personal involvement.”). Moreover, as noted above, there does not appear to be any impediment to Plaintiff filing a state court tort action against Swintec to recover his missing refund. See Hernandez v. Corrections Emergency Response Team, Tl\ Fed.Appx. at 145 (“Even if the prison grievance procedures could be considered constitutionally inadequate, Pennsylvania's state tort law would provide an adequate remedy”) (citing 42 Pa. C.S. § 8522(b)(3)). Because the existence of each of these post-deprivation procedures satisfies the Due Process Clause, dismissal is warranted.
III. Conclusion
For the foregoing reasons, it is respectfully recommended that this action be dismissed as legally frivolous and/or for failure to state a claim in accordance with 28 U.S.C. § 1915(e). Moreover, considering the many deficiencies identified in this order, it is further recommended that leave to amend be denied as futile. However, said dismissal should be without prejudice to Plaintiffs' ability to reassert his claims against the appropriate parties in state court, if so desired.
IV. Notice
In accordance with 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72, the parties must seek review by the district court by filing Objections to the Report and Recommendation within fourteen (14) days of the filing of this Report and Recommendation. Any party opposing the Objections shall have fourteen (14) days from the date of service of the Objections to respond thereto. See Fed.R.Civ.P. 72(b)(2). Extensions of time will not be granted. Failure to file timely objections may constitute a waiver of appellate rights. See Brightwell v. Lehman, 637 F.3d 187, 193 n.7 (3d Cir. 2011); Nara v. Frank, 488 F.3d 187 (3d Cir. 2007).