Opinion
1:22-cv-77
07-11-2022
SHAIEJON CROCKETT, Plaintiff v. KEVIN SUTTER and MIKE HALMAN, Defendants
SUSAN PARADISE BAXTER, UNITED STATES DISTRICT JUDGE
REPORT AND RECOMMENDATION
MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
RICHARD A. LANZILLO, UNITED STATES MAGISTRATE JUDGE
I. Recommendation
It is hereby recommended that Plaintiff Shaiejon Crockett's motion for leave to proceed in forma pauperis [ECF No. 1] be granted. It is further recommended that this action be for failure to state a claim in accordance with 28 U.S.C. § 1915(e) or, alternatively, based upon Plaintiff's failure to prosecute.
II. Report
A. Motion to proceed in forma pauperis
Plaintiff has filed a motion for leave to proceed in forma pauperis averring that he is unable to pay the filing fee associated with this case. Based upon this averment and a review of his in forma pauperis application [ECF No. 1] and prisoner trust fund account statement [ECF No. 2], the undersigned concludes 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. Background
Plaintiff, an inmate formerly confined at the Erie County Prison, commenced this action by filing a civil rights complaint pursuant to 42 U.S.C. § 1983 against Erie County Prison Warden Kevin Sutter and Deputy Warden Mike Halman. ECF No. 1-1. Plaintiff generally alleged that staff at the Erie County Prison placed him in a cell with an inmate who had not been vaccinated against the COVID-19 virus. ECF No. 1-1 at 2. Plaintiff then “caught covid and ... got sick.” Id. Although he identified the officers who placed him in the cell as Nate Austin and Matthew Bevechio, the only Defendants named in his complaint were Sutter and Halman. Id. Aside from “denying [his] grievance,” no conduct of any sort was ascribed to either named Defendant.
On June 2, 2022, the undersigned conducted an initial screening of Plaintiff s proposed complaint and determined that he had failed to plead the personal involvement of either Defendant. The Court explained that, to prevail on a claim pursuant to 42 U.S.C. § 1983, a plaintiff must prove that a defendant, acting under color of state law, deprived the plaintiff of a right secured by the Constitution or laws of the United States. Mark v. Borough of Hatboro, 51 F.3d 1137, 1141 (3d Cir. 1995). When those claims implicate multiple defendants, the plaintiff “must show that each and every defendant was ‘personal[ly] involve[d]' in depriving him of his rights.” Kirk v. Roan, 2006 WL 2645154, at *3 (M.D. Pa. 2006) (quoting Evancho v. Fischer, 423 F.3d 347, 353 (3d Cir. 2006)). Where the Defendants are supervisors, participation in the grievance process “is not sufficient to show the actual knowledge necessary for a defendant to be found personally involved in the alleged unlawful conduct.” Mearin v. Swartz, 951 F.Supp.2d 776, 781-82 (W.D. Pa. 2013). See also 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.”). 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 plaintiff's 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). Because Plaintiffs complaint contained no such allegations, the Court noted that he had failed to describe the personal involvement of any individual with enough specificity to create a plausible inference that the named Defendants engaged in actionable misconduct.
Rather than recommend dismissal pursuant to § 1915(e) at that time, the Court offered Plaintiff an opportunity to file an amended complaint. Id. The Court provided Plaintiff with guidance as to the level of factual specificity required and directed him to submit an amended pleading on or before July 1, 2022. Id. at 2-3. As of the date of this Report, Plaintiff has failed to comply.
C. Standard for 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 factual 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).
D. Analysis
Applying the principles above, the Court finds that this action is subject to dismissal pursuant to § 1915(e) for failure to state a claim. As noted above, as well as in the Court's prior order, Plaintiff has not pled the personal involvement of either of the named Defendants. This defect is fatal to his complaint.
Notwithstanding the foregoing, the Court also notes that Plaintiff appears to have abandoned his claims. The Court of Appeals has set out a six-factor balancing test to guide a . court in determining whether a case or claim should be dismissed for failure to prosecute. See Poulis v. State Farm Fire & Casualty Co., 747 F.2d 863 (3d Cir. 1984). The court must consider: 1) the extent of the party's personal responsibility; 2) the prejudice to the adversary caused by the failure to meet scheduling orders and respond to discovery; 3) a history of dilatoriness; 4) whether the conduct of the party or attorney was willful or in bad faith; 5) the effectiveness of sanctions other than dismissal, which entails an analysis of alternative sanctions; and 6) the meritoriousness of the claim or defense. Id. at 868.
In its prior order directing Plaintiff to file an amended complaint, the Court explicitly cautioned Plaintiff that failure to comply might result in a recommendation that this matter be dismissed for failure to prosecute. Because “dismissal with prejudice is an extreme sanction” that should be employed as a “last, not first, resort,” see Hildebrand v. Allegheny County, 923 F.3d 128, 132 (3d Cir. 2019) (internal quotations omitted), the Court primarily recommends dismissal based on Plaintiff's failure to state a claim. The Court notes, however, that each of the Poulis factors would favor dismissal here. Plaintiff certainly bears the responsibility for his own failure to file an amended pleading. See, e.g., Colon v. Karnes, 2012 WL 383666, at *3 (M.D. Pa. Feb. 6, 2012) (“Plaintiff is proceeding pro se, and thus is responsible for his own actions.”). Plaintiffs failure to communicate with the Court in pursuit of his claims establishes a history of dilatoriness and deprives Defendants of an opportunity to receive a timely adjudication. See Mack v. United States, 2019 WL 1302626, at *1 (M.D. Pa. Mar. 21, 2019) (“[F]ailure to communicate clearly prejudices the Defendants who seek a timely resolution of the case” and “establishe[s] a history of dilatoriness”). Moreover, as noted above, the Court cannot evaluate the potential merits of Plaintiff s claims because he has failed to identify any individual who was personally involved in the alleged misconduct. Finally, it appears that the Court's most recent mailing did not reach Plaintiff because he is no longer at the Erie County Prison and has failed to maintain a current address with the Court. Each of these factors weighs in favor of dismissal.
These factors also weigh against permitting Plaintiff another opportunity to amend. Given his failure to respond to the Court's prior directives, there is no reason to think he would seize another opportunity to clarify his claims. Moreover, while the Third Circuit has instructed that a Court should permit a curative amendment if a civil rights complaint is vulnerable to dismissal for failure to state a claim, Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002), the court ‘“need not provide endless opportunities for amendment. .. where such opportunity already has been enjoyed.” Baker v. Moon Area Sch. Dist., 2018 WL 40571719, at *8 (W.D. Pa. Aug. 27, 2018) (quoting Taylor v. Pilewski, 2008 WL 4861446, at *3 (W.D. Pa. Nov. 7,2008)).
III. Conclusion
For the foregoing reasons, it is respectfully recommended that this action be dismissed for failure to state a claim in accordance with 28 U.S.C. § 1915(e) or, alternatively, based upon Plaintiff s failure to prosecute his claims. For the same reasons, leave to amend should be denied.
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).