Opinion
Civil Action 3:20-CV-01106
09-18-2021
KEVIN DAVIS, Plaintiff, v. JOHN WETZEL, et al, Defendants.
BRANN, J.
REPORT AND RECOMMENDATION
KAROLINE MEHALCHICK CHIEF UNITED STATES MAGISTRATE JUDGE
This case involves pro se prisoner-Plaintiff Kevin Davis ("Davis"), who brings the above-captioned civil rights action pursuant to 42 U.S.C. § 1983. In his Complaint, Davis alleges that his First and Eighth Amendment rights were violated due to the theft of his property, improper medical treatment, and his transfer between prisons. (Doc. 1, at 5-8). Davis argues that such actions stemmed from retaliation by Defendants Sergeant Curran, Tammy Ferguson, Nedra Grego, Paul Noel, N. Ranker, Officer Rogers, Joseph Silva, John Steinhart, Rich Wenhold, John Wetzel (collectively, the "DOC Defendants"); and Correct Care Solutions ("CCS"), Jay Cowan, Darla Cowden (collectively, the "Correct Care Defendants") in response to a lawsuit that Davis had previously filed. (Doc. 1, at 1-2, 5-8). In his Motion to Supplement, Davis seeks to add an additional claim of retaliation alleging that he was denied insulin treatment for his diabetes and adds further specificity to his already existing claims. (Doc. 19, at 1). Davis seeks a declaratory judgment that his rights were violated; reimbursement in the amounts of $450.00, $197.00, and $100.00 for various items; repairs to be made to his radio; a preliminary injunction directing Defendant Darla to reinstate insulin treatments; and compensatory and punitive damages in the total amount of $70,000.00. (Doc. 1 at 8-9).
Davis's previously filed lawsuit was filed on October 30, 2017. Davis v. Wetzel, No. 1:18-CV-00804 (M.D. Pa. Oct. 30, 2017), ECF No. 5.
Pending before the Court is a Motion to Dismiss, filed by the DOC Defendants; a Motion to Supplement the Complaint, filed by Davis; and a Motion to Dismiss, filed by the Correct Care Defendants. (Doc. 16; Doc. 19; Doc. 30). The DOC Defendants aver that the claims against Defendants Wetzel, Ferguson, Steinhart, Noel, Wenhold, Silva, Grego, and Ranker should be dismissed for lack of personal involvement and that Davis's "access to courts claim should be dismissed ... for failure to state a claim upon which relief may be granted." (Doc. 16, at 4). The Correct Care Defendants submit that the claims against Defendant Cowan should be dismissed for lack of personal involvement, the claims against Defendant CCS should be dismissed because Davis has failed to establish "a viable claim of deliberate indifference against it," and that Davis's claims are not proper under the Prison Litigation Reform Act, 42 U.S.C. § l997e, because Davis failed to exhaust his administrative remedies. (Doc. 30, at 5, 8, 11).
Correct Care Defendants seek Motion for Summary Judgment in the alternative. (Doc. 30).
For the reasons stated herein, it is recommended that the Court GRANT Defendants' Motions to Dismiss in part and GRANT Plaintiffs Motion to Supplement. (Doc. 16; Doc. 19; Doc. 30).
I. Background
Davis is a Hepatitis-C positive prisoner currently incarcerated at the State Correction Institution in Fayette, Pennsylvania ("SCI-Fayette"). (Doc. 1, at 1, 6). On July 2, 2020, Davis filed his Complaint. (Doc. I). On July 20, 2020, Davis filed a motion for leave to proceed in forma pauperis, which this Court granted on August 18, 2020. (Doc. 4; Doc. 6). Davis also filed a Motion to Supplement his Complaint on October 23, 2020. (Doc. 19). On October 16, 2020, the DOC Defendants filed a Motion to Dismiss and on February 24, 2020, the Correct Care Defendants filed a Motion to Dismiss. (Doc. 16; Doc. 30). Both Motions to Dismiss have been fully briefed and are ripe for disposition. (Doc. 16; Doc. 17; Doc. 23; Doc. 30; Doc. 31; Doc. 32; Doc. 33; Doc. 34).
On October 30, 2017, Davis filed a related Complaint in this matter in the United States District Court for the Western District of Pennsylvania. Davis v. Wetzel, No. 1:l8-CV-00804 (M.D. Pa. Oct. 30, 2017), ECF No. 5. Davis also filed a motion to proceed in forma pauperis on October 27, 2017, which was granted by the Western District Court on October 30, 2017. Davis v. Wetzel, No. 1:18-CV-00804 (M.D. Pa. Oct. 27, 2017), ECF No. 2; Davis v. Wetzel, No. l:18-CV-00804 (M.D. Pa. Oct. 30, 2017), ECF No. 4. The Western District Court transferred Davis's cause of action to the Middle District of Pennsylvania on April 9, 2018. Davis v. Wetzel, No. 1:18-CV-00804 (M.D. Pa. Apr. 9, 2018), ECF No. 46; Davis v. Wetzel, No. 1:18-CV-00804 (M.D. Pa. Apr. 13, 2018), ECF No. 47.
The events giving rise to Davis's cause of action stem from alleged retaliation due to the filing of a previous Complaint. (Doc. 1, at 5). Davis claims that he was transferred to two different correctional institutions, that his personal property was stolen by correctional officers, and that the medical staff withheld Davis's treatment for his diabetes all in retaliation for his filing of a Complaint. (Doc. 1, at 5-7). First, Davis states that he was transferred to State Correctional Institution at Graterford ("SCI-Graterford") which "had the highest rate of assaults in Pennsylvania and . . . [was] where he had previously been assaulted" and then was transferred back to SCI-Fayette (Doc. 1, at 5-6). Davis claims that due to the transfers, he feared for his life, lost his fiance, and missed a parole interview. (Doc. 1, at 5-7). Second, Davis alleges that upon his transfers his "legal and personal property" were destroyed including his typewriter, Timberland boots, and radio. (Doc. 1, at 6). Davis claims that the seizure of his property obstructed his access to the courts and prevented him from adequately litigating his pending civil action. (Doc. 1, at 7). Finally, Davis states that Defendants withheld his diabetic medical treatment, specifically his evening insulin treatments and finger pricks, when they learned that he had filed a Complaint against prison officials. (Doc. 1, at 6-7, 9). Davis claims that he suffers from numbness in his left arm which he believes to be "an indication of a mild heart attack or a stroke." (Doc. 1, at 7).
Davis requests the Court to reinstate his insulin treatments and "evening finger," which this Court interprets as the common diagnostic test for diabetics involving the pricking of the finger to draw blood and test. (Doc. 1, at 9).
As for relief, Davis seeks declaratory judgment that the Defendants violated his First and Eighth Amendment rights. (Doc. 1, at 8). He also seeks to enjoin Defendant Darla to "reinstate Dr. Ko's prescribed insulin treatment. . . and evening finger [prick]." (Doc. 1, at 9). Davis additionally seeks damages in the amount of the cost of this action, cost of shipping property, and the cost of his stolen boots, along with a repair of his radio from a manufacturer in Boston, Massachusetts. (Doc. 1, at 9). Finally, Davis requests the Court "process [the] above relief by August 1, 2020, or award [him] compensatory, exemplary, and consequential damages including interest." (Doc. 1, at 9).
II. Standard of Review
Rule 12(b)(6) of the Federal Rules of Civil Procedure authorizes a defendant to move to dismiss for "failure to state a claim upon which relief can be granted." Fed.R.Civ.P. 12(b)(6). To assess the sufficiency of a complaint on a Rule 12(b)(6) motion, a court must first take note of the elements a plaintiff must plead to state a claim, then identify mere conclusions which are not entitled to the assumption of truth, and finally determine whether the complaint's factual allegations, taken as true, could plausibly satisfy the elements of the legal claim. Burtch v. Milberg Factors, Inc., 662 F.3d 212, 221 (3d Cir. 2011). In deciding a Rule 12(b)(6) motion, the court may consider the facts alleged on the face of the complaint, as well as "documents incorporated into the complaint by reference, and matters of which a court may take judicial notice." Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007).
After recognizing the required elements which make up the legal claim, a court should "begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth." Ashcroftv. Iqbal, 556 U.S. 662, 679 (2009). The plaintiff must provide some factual ground for relief, which "requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). "[T]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Iqbal, 556 U.S. at 678. Thus, courts "need not credit a complaint's 'bald assertions' or 'legal conclusions'" Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997) (quoting In re Burlington Coat Factory Sec. Litig, 114 F.3d 1410, 1429-30 (3d Cir. 1997)). Nor need a court assume that a plaintiff can prove facts that the plaintiff has not alleged. Associated Gen. Contractors of Cal. v. Cal. State Council of Carpenters, 459 U.S. 519, 526 (1983).
A court must then determine whether the well-pleaded factual allegations give rise to a plausible claim for relief. "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Palakovic v. Wetzel, 854 F.3d 209, 219-20 (3d Cir. 2017) (quoting Iqbal, 556 U.S. at 678) (internal quotation marks omitted); see also Sheridan v. NGK Metals Corp., 609 F.3d 239, 262 n.27 (3d Cir. 2010). The court must accept as true all allegations in the complaint, and any reasonable inferences that can be drawn therefrom are to be construed in the light most favorable to the plaintiff. Jordan v. Fox, Rothschild, O'Brien & Frankel, 20 F.3d 1250, 1261 (3d Cir. 1994). This "presumption of truth attaches only to those allegations for which there is sufficient factual matter to render them plausible on their face." Schuchardt v. President of the U.S., 839 F.3d 336, 347 (3d Cir. 2016) (internal quotation and citation omitted). The plausibility determination is context-specific and does not impose a heightened pleading requirement. Schuchardt, 839 F.3d at 347.
Additionally, Federal Rule of Civil Procedure 8(a)(2) requires "a short and plain statement of the claim showing that the pleader is entitled to relief." Thus, a well-pleaded complaint must recite factual allegations that are sufficient to raise the plaintiffs claimed right to relief beyond the level of mere speculation, set forth in a "short and plain" statement of a cause of action. There is no requirement that the pleading be specific or probable. Schuchardt, 839 F.3d at 347 (citing Phillips v. Cty. of Allegheny, 515 F.3d at 224, 233-234 (3d Cir. 2008). Rule 8(a) requires a "showing that 'the pleader is entitled to relief, in order to give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.'" Erickson v. Pardus, 551 U.S. 89, 93-94 (2007) (quoting Fed.R.Civ.P. 8(a)(2)); see also Phillips, 515 F.3d at 233 (citing Twombly, 550 U.S. at 545).
With the aforementioned standards in mind, a document filed pro se is "to be liberally construed." Estelle v. Gamble, 429 U.S. 97, 106 (1976). A pro se complaint, "however inartfully pleaded," must be held to "less stringent standards than formal pleadings drafted by lawyers" and can only be dismissed for failure to state a claim if it appears beyond a doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Haines v. Kerner, 404 U.S. 519, 520-21 (1972). Further, the Third Circuit has instructed that if a complaint is vulnerable to dismissal for failure to state a claim, the district court must permit a curative amendment, unless an amendment would be inequitable or futile. Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002).
III. Discussion
In the DOC Defendants' Motion to Dismiss, the DOC Defendants argue that Defendants Wetzel, Ferguson, Steinhart, Noel, Wenhold, Silva, Grego, and Ranker should be dismissed for lack of personal involvement and that Davis fails to state a claim regarding his access to the courts. (Doc. 17, at 4). Davis states that the Defendants "were either directly involved or acquiesce[d] in the constitutional violations" and that he was unable to obtain legal assistance regarding his three pending cases at the time due to Defendants' seizure and destruction of his property, resulting in his denial of access to the court. (Doc. 23, at 3-4).
In the Correct Care Defendants' Motion to Dismiss, the Correct Care Defendants argue that the claims against Defendant Cowan lack personal involvement, Davis has failed to identify a policy or custom that Defendant CCS maintained that violated Davis's constitutional rights, and that Davis has not properly exhausted his administrative remedies. (Doc. 31, at 5, 9, 11). Davis states that Defendant Cowan failed to intervene against the unconstitutional conduct and acquiesced in the retaliation against Davis. (Doc. 32, at 5-6). Davis also argues that CCS has demonstrated "a policy, custom or practice of acquiescing when their employers or employees violate the constitution." (Doc. 32, at 8). Finally, Davis submits that he "was prevented from using the grievance procedure [and that he] exhausted the remedies that were available to him." (Doc. 32, at 12).
A. Plaintiff's Motion to Supplement
Davis, through his Motion to Supplement and Proposed Document, attempts to both amend and supplement his original Complaint. (Doc. 19; Doc. 20). A supplemental pleading "refers to events that occurred after the original pleading was filed," as opposed to an amended complaint which "covers matters that occurred before the filing of the original pleading but were overlooked at the time." Owens-Illinois, Inc. v. Lake Shore Land Co., 610 F.2d 1185, 1188-89 (3dCir. 1979); see also Wright and Miller's Fed. Prac. &Proc. Civ. § 1504 (3ded.) ("[Supplemental pleadings] deal with events subsequent to the pleading to be altered and represent additions to or continuations of the earlier pleadings.")- Because Davis filed his Motion to Supplement, which this Court construes, in part, as a motion to amend, within 21 days after DOC Defendants filed their Motion to Dismiss for Failure to State a Claim, he is entitled to amendment as a matter of course. Fed.R.Civ.P. 15(a)(1)(B); (Doc. 19; Doc. 20; Doc. 16). However, absent the opposing party's written consent, the court's leave is always required for supplemental pleadings. Fed.R.Civ.P. 15(d). Defendants in this matter have not consented to Davis's proposed supplement, so leave of court is required. Fed.R.Civ.P. 15.
Decisions regarding motions to supplement pleadings are committed to the court's broad discretion and will not be disturbed absent an abuse of that discretion. See Owens-Illinois, Inc., 610 F.2d at 1188-89; see also Burns v. Exxon Corp., 158 F.3d 336, 344 (5th Cir. 1998) (holding that district court did not abuse its discretion in denying leave to file supplemental complaint). That discretion is guided by an animating principle embodied by Rule 15: that leave should be freely given when justice so requires. See Foman v. Davis, 371 U.S. 178, 182 (1962) ("[T]his mandate is to be heeded."). Consistent with the Rule's liberal approach, leave to file a supplemental complaint should be freely permitted in the absence of undue delay, bad faith, dilatory tactics, undue prejudice to defendants, repeated failures to correct deficiencies with previous amendments, or futility, and, when presented with a supplemental pleading, "where the supplemental facts are connected to the original pleading." Hassoun v. Cimmino, 126 F.Supp.2d 353, 361 (D.N.J. 2000) (citing Quaratino v. Tiffany & Co., 71 F.3d 58, 66 (2d Cir. 1995)); Victor v. Varano, No. 3:ll-CV-891, 2012 WL 2367095, at *5 (M.D. Pa. June 21, 2012) (citations omitted); Riley v. Taylor, 62 F.3d 86, 90 (3d Cir. 1995).
Rule 15(d) specifically addresses the submission of supplemental pleadings. It provides that, upon motion of a party, "the court may, on just terms, permit a party to serve a supplemental pleading setting out any transaction, occurrence, or event that happened after the date of the pleading to be supplemented." Fed.R.Civ.P. 15(d). Notably, "[b]ecause it refers to events that occurred after the . . . pleading was filed, a supplemental pleading differs from an amendment [under Rule 15(a)], which covers matters that occurred before the filing of the . . . pleading but were overlooked at the time." Owens-Illinois, Inc., 610 F.2d at 1188. Indeed, "[t]he purpose of Rule 15(d) is to promote as complete an adjudication of the dispute between the parties as possible by allowing the addition of claims which arise after the . . . pleadings are filed." Green v. Nish, No. 1:12-CV-0321, 2012 WL 5509785, at *3 (M.D. Pa. Oct. 10, 2012), report and recommendation adopted, No. 1:12-CV-321, 2012 WL 5508488 (M.D. Pa. Nov. 14, 2012) (quotation omitted).
Davis's proposed supplemental complaint makes wording changes, particularizes facts, adds facts, and adds claims. (Doc. 20). To the extent that Davis alleges claims that occurred before the filing of this Complaint, such claims are construed as a motion to amend. Davis also alleges an additional act of retaliation that occurred on October 12, 2020. Because this alleged action occurred after the filing of the Complaint, this instance of retaliation shall be construed as a motion to supplement. (Doc. 20, at 12). The Defendants do not contest Davis's proposed supplemental complaint, however due to the Courts duty to screen the complaint pursuant to 28 U.S.C. § 1915(e)(2)(B), the Court shall screen the Proposed Complaint. 28 U.S.C. § 1915(e)(2)(B) ("[T]he court shall dismiss the [proœ Plaintiffs] case at any time if the court determines that... the action or appeal is frivolous or malicious; fails to state a claim on which relief may be granted; or seeks monetary relief against a defendant who is immune from such relief." (emphasis added)); see also Muchler v. Smith Bail Bonds, LLC, Civ. No. 3:15-CV-32, 2015 WL 631038, at *l ("[A]s part of our legally-mandated duty to screen pro se in forma pauperis pleadings, we recommend that this... proposed amended complaint be dismissed").
Proposed changes which arise from alleged conduct occurring after the original Complaint was filed are considered a proposed supplement to the original Complaint. Owens-Illinois, Inc., 610 F.2d at 1188. Davis's proposed supplemental allegations begin in October 12, 2020, and state that he was denied insulin. (Doc. 20, at 12). Davis avers that Defendant Darla discontinued his insulin injections due to his pending litigation against other members of the prison staff and "in deliberat[e] indifferen[ce] to Plaintiffs serious medical needs." (Doc. 20, at 13-14). Decisions regarding motions to amend and supplement pleadings - both governed under Federal Rule of Civil Procedure 15- are committed to a court's broad discretion. See Owens-Illinois, Inc., 610 F.2d at 1188-89. Consistent with Rule 15's liberal approach, "[l]eave to file a supplemental complaint should be freely permitted in the absence of undue delay, bad faith, dilatory tactics, undue prejudice to defendants, or futility, and when the supplemental facts are connected to the original pleading." Hassoun, 126 F.Supp.2d at 361.
Here, the factors of undue delay, bad faith, dilatory tactics, undue prejudice, and futility all weigh in favor of Davis. The Motion to Supplement that was filed seven days after the DOC Defendants Motion to Dismiss, is timely, and is not prejudicial to Defendants. Davis has not engaged in dilatory tactics and Defendants do not contest the merits of the additional claims. As for the supplemental facts' connections to the original pleading, this, too, allows for the supplement to be permitted. The additional allegations relating to Davis's denial of insulin injections and diabetic treatments bear strong resemblance to the claims in the original Complaint and involve identical issues of law and shall be permitted. (Doc. 20, ¶¶ 63-74). Reasons for not permitting leave to supplement are not present here. See Hassoun, 126 F.Supp.2d at 361; Ratchford, 451 F.Supp. 677-79. Therefore, Davis's "Fifth Act of Retaliation" claim is allowed.
Davis's proposed modifications to the original Complaint are uncontested. (Doc. 19; Doc. 20). Apart from his additional claim of retaliation, these changes and additions serve to add further detail and clarification to the original allegations and claims. (Doc. 20, at 1-12). In the interest of justice and liberally construing his pro se Complaint, it is recommended that Davis be permitted to make such changes, and that his Motion be granted.
Because the motions to dismiss (Doc. 16; Doc. 30) raise issues pertinent to the proposed amended and supplemented complaint, the Court will address those motions as well.
B. Exhaustion of Remedies
The Correct Care Defendants argue that Davis did not exhaust the grievance process as it pertains to his claims against Defendant Cowan, that Davis did not seek monetary relief "as required by DOC policy," and that Davis is thus precluded from seeking claims against Defendant Cowan and an award of monetary damages. (Doc. 31, at 12). Davis avers that he was prevented from using the grievance procedures and exhausted what remedies were available to him. (Doc. 32, at 12).
In 1996, Congress enacted the Prison Litigation Reform Act of 1995 ("PLRA"). 42 U.S.C. § l997e. The PLRA mandated that prisoners exhaust all available administrative remedies prior to initiation of a suit under § 1983 for a deprivation of Constitutional rights. 42 U.S.C. § l997e(a). Previously discretionary, the PLRA made unexhausted claims unreviewable by the District Courts. See Booth v. Churner, 532 U.S. 731, 739 (2001). Although exhaustion is mandatory under the PLRA, proper exhaustion is an affirmative defense that must be pleaded and proven by the defendant. Ahmed v. Dragovich, 297 F.3d 201, 209 (3d Cir. 2002); see also Ray v. Kertes, 285 F.3d 295 (3d Cir. 2002).
Even where the relief sought is unavailable through administrative remedies, prisoners must pursue their claims through prison channels prior to initiation of litigation in federal courts. See Woodford v. Ngo, 548 U.S. 81, 85 (2006). Indeed, inmates must see their complaints through to the final review possible under the administrative review system in place. Woodford, 548 U.S. at 93. Claims not made within the parameters set forth by the prisons, and therefore not reviewed on the merits, are considered procedurally defaulted. Spruillv. Gillis, 372 F.3d 218, 227-32 (3d Cir. 2004); see also Payne v. Pitkins, 447 Fed.Appx. 291, 292 (3d Cir. 2011) ("[A]n 'untimely or otherwise procedurally defective administrative grievance or appeal' is insufficient to satisfy the PLRA's exhaustion requirement.") (citations omitted). Courts are precluded from considering unexhausted or procedurally defaulted claims. Spruill, 372 F.3d at 227-32. In applying this procedural default component to the exhaustion requirement, it has additionally been held that:
[a]s for the failure to identify named defendants on the grievance form, ... to the extent the identity of a defendant was "a fact relevant to the claim," ... in the absence of any justifiable excuse, a[n] inmate's failure to properly identify a defendant constituted a failure to properly exhaust his administrative remedies under the PLRA.Williams v. Pa. Dep't. of Con., 146 Fed.Appx. 554, 557 (3d Cir. 2005) (not precedential). Thus, "it is clear, regardless of the purpose of the requirement, that Spruill requires the prisoner-grievant-plaintiff to name in the grievance those he eventually sues, upon pain of procedural default." Hemingway v. Ellers, No. 07-1764, 2008 WL 3540526, at *ll (M.D. Pa. Aug. 12, 2008).
The broad rule favoring full exhaustion admits of one, narrowly defined exception. If the actions of prison officials directly caused the inmate's procedural default on a grievance, the inmate will not be held to strict compliance with this exhaustion requirement. See Camp v. Brennan, 219 F.3d 279 (3d Cir. 2000) (finding administrative remedies "unavailable" when correctional officers told prisoner that his grievances would not reach the Grievance Coordinator). However, case law recognizes a clear "reluctance to invoke equitable reasons to excuse [an inmate's] failure to exhaust as the statute requires." Davis v. Warman, 49 Fed.Appx. 365, 368 (3d Cir. 2002). Thus, an inmate's failure to exhaust will only be excused "under certain limited circumstances." Harris v. Armstrong, 149 Fed.Appx. 58, 59 (3d Cir. 2005). An inmate can defeat a claim of failure to exhaust only by showing "he was misled or that there was some extraordinary reason he was prevented from complying with the statutory mandate." Davis, 49 Fed.Appx. at 368. See also Brown v. Croak, 312 F.3d 109, 110 (3d Cir. 2002) (assuming that a prisoner with a failure to protect claim is entitled to rely on instruction by prison officials to wait for an outcome of an internal security investigation before filing a grievance); Camp, 219 F.3d at 281 (exhaustion requirement met where the Office of Professional Responsibility fully examined the merits of an excessive force claim and defendants did not "refute[ ]" prisoner's account of the facts).
In the absence of competent proof that an inmate was misled by corrections officials, or some other extraordinary circumstances, inmate's requests to excuse a failure to exhaust are frequently rebuffed by the courts. Thus, an inmate cannot excuse a failure to timely comply with grievance procedures by simply claiming that his efforts constituted "substantial compliance" with this statutory exhaustion requirement. Harris, 149 Fed.Appx. at 59. Nor can an inmate avoid the exhaustion requirement by merely alleging that the DOC policies were not clearly explained to him. Davis, 49 Fed.Appx. at 368. Further, an inmate's confusion regarding these grievance procedures do not, standing alone, excuse a failure to exhaust. Casey v. Smith, 71 Fed.Appx. 916 (3d Cir. 2003). Moreover, an inmate cannot cite to alleged staff impediments to grieving a matter as grounds for excusing a failure to exhaust if it also appears that the prisoner did not pursue a proper grievance once those impediments were removed. Oliver v. Moore, 145 Fed.Appx. 731 (3d Cir. 2005) (failure to exhaust not excused if, after the staff allegedly ceased efforts to impede a grievance, a prisoner failed to follow through on his or her grievance). "There is one exception to the mandatory exhaustion requirement: administrative remedies must be available to the prisoner." Downey v. Pa. Dept. of Corn, 968 F.3d299, 305 (3d Cir. 2020) (citing Ross v. Blake, 136 S.Ct. 1850, 1858 (2016)); see also Johnson v. Wireman, 809 F. App'x. 97, 100 (3d Cir. 2020) ("[A] prisoner need exhaust only available administrative remedies." (internal quotations omitted)). If an administrative remedy "operates as a simple dead end[, ] ... is so opaque that it becomes, practically speaking, incapable of use, or when prison administrators thwart inmates from taking advantage of a grievance process through machination, misrepresentation or intimidation" it is considered unavailable. Shifflett v. Korzniak, 934 F.3d 356, 365 (3d. Cir. 2019) (internal quotations omitted); see also Downey, 968 F.3d at 305; Ross, 136 S.Ct. at 1859-60.
The Correct Care Defendants allege that Davis "did not name [Defendant] Cowan in any grievances that he pursued to final review" and has therefore not exhausted his administrative remedies as they pertain to the allegations against Defendant Cowan. (Doc. 31, at 16). Additionally, the Correct Care Defendants argue that neither of the relevant grievances Davis pursued to final review "request monetary relief as required by DOC policy" and he is "limit[ed in] the remedies which he is able to seek by way of compensation, . . . mak[ing] monetary damages unavailable." (Doc. 31, at 20). Davis states that due to the precautions taken by the DOC regarding the COVID-19 virus, the number of inmates allowed in the library were limited and that he exhausted his remedies to the fullest extent possible given this limitation. (Doc. 31, at 9-12).
Here, Davis alleges that he was "prevented from using the grievance procedure" and thus "the appeals process was unavailable to him." (Doc. 32, at 12) (internal quotations omitted). Davis outlines that he had limited access to the prison law library due to the "emergency situation with COVID-19" and "was advised that he did not satisfy the criteria set forth by the librarians to process the exhibits for his appeal." (Doc. 32, at 10 - 11). Therefore, Davis concludes that he was prevented from exhausting his administrative remedies because he could not complete the grievance process due to his inability to access the law library. (Doc. 32, at 12). In response, the Correct Care Defendants state that Davis's inability to complete the grievance procedure "would not [have] cure[d] his failure to exhaust" because Davis was merely trying to submit exhibits to his complaints and was not attempting to name additional defendants or seek monetary relief. (Doc. 33, at 2). The Court finds that because Davis raises the question of whether administrative remedies were available to him, such a question is best assessed at the summary judgement stage of litigation when the factual record has been more fully developed. See Talley v. Pa. Dept. of Corr., Civ. Action No. 3:16-CV-02074, 2017 WL 7806650, at *7 (M.D. Pa. Dec. 20, 2017) ("[T]he Court finds that dismissal on exhaustion grounds is best reserved for the summary judgment stage of proceedings."). As such, it is recommended that the Court deny Defendants' motion on grounds of exhaustion, without prejudice to revisiting the issue of exhaustion at a later point in this case.
C. Personal Involvement
The DOC Defendants submit that Defendants Wetzel, Ferguson, Steinhart, Noel, Wenhold, Silva, Grego, and Ranker should be dismissed for lack of personal involvement. (Doc. 17, at 4). First, the DOC Defendants state that Davis predicates his claim against Defendant Wetzel "on a theory of respondeat superior" and therefore he does not allege the personal involvement of Defendant Wetzel. (Doc. 17, at 6). Second, the DOC Defendants state that Davis's claim against Defendant Ferguson lacks personal involvement because it is based on Defendant Ferguson's failure to act on or respond to Davis's grievance. (Doc. 17, at 8). Third, the DOC Defendants argue that Davis's claims pertaining to Defendants Steinhart, Noel, Wenhold, Silva, and Grego should be dismissed because Davis has failed to "plead any facts to indicate how these individuals were personally involved with any violations regarding his property." (Doc. 17, at 9). Finally, the DOC Defendants argue that Davis's claims against Defendant Ranker should be dismissed because he merely alleges that Defendant Ranker was notified of the theft of Davis's property after the theft occurred and Davis has failed to allege how Defendant Ranker was personally involved or if "he was in a position to 'restore' [Davis's] property." (Doc. 18, at 10). Davis states that he spoke and wrote to Defendant Ferguson and notified the other DOC Defendants through his filing with Judge Eddy and, therefore, the Defendants "were either directly involve[d] or acquiesce[d] in the constitutional violations." (Doc. 23, at 3-4).
In their Motion to Dismiss, the Correct Care Defendants state that Defendant Cowan is only mentioned in the caption and that there are "no further allegations set forth by the Complaint for Dr. Cowan." (Doc. 31, at 5). Additionally, the Correct Care Defendants state that Davis makes no definitive allegations as to what custom or policy of deliberate indifference CCS maintained and that Davis fails to articulate a claim against CCS. (Doc. 31, at 8). Davis argues that Defendant Cowan knew of the constitutional violations and had the "authority to intervene," but chose not to act. (Doc. 32, at 4-5). Davis also states that CCS was provided with "knowledge that Plaintiff was in imminent danger and required medical attention" and that CCS failed to intervene in the denial of Davis's treatment demonstrating a pattern of "acquiescing when their employers or employees violate the constitution." (Doc. 32, at 7-8).
The Third Circuit held that "a defendant in a civil rights action must have personal involvement in the alleged wrongs to be liable and cannot be held responsible for a constitutional violation which he or she neither participated in nor approved." Baraka v. McGreevey, 481, F.3d 187, 210 (3d Cir. 2007) (internal citations omitted). In civil rights actions "[p]ersonal involvement can be shown through allegations of personal direction or of actual knowledge and acquiescence." Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988). It is insufficient to assert liability against a supervisor solely due to their position. To "plead that [a Defendant is] liable in [his or her] individual capacity as a supervisor, [the Plaintiff] had to allege that she [or he] was personally involved in the constitutional violation[s]-vicarious liability is not enough." See Phillips v. Northampton Co., P.A., 687 Fed.Appx. 129, 131 (3d Cir. 2017). "Individual defendants who are policymakers may be liable under 1983 if it is shown that such defendants, 'with deliberate indifference to the consequences, established and maintained a policy, practice or custom which directly caused [the] constitutional harm.'" A.M. Ex rel. J.M.K. v. Luzerne Cty. Juv. Det. Ctr., 372 F.3d 572, 586 (3d Cir. 2004) (quoting Stoneking v. Bradford Area Sch. Dist., 882 F.2d 720, 725 (3d Cir. 1989)).
Monell represents an exception to the general rule that "[a] defendant in a civil rights action must have personal involvement in the alleged wrongs to be liable, and cannot be held responsible for a constitutional violation which he or she neither participated in nor approved." Baraka, 481 F.3d at 210 (citations and quotations omitted). Under Monell, a municipality - or a private corporation contracted by the municipality - may be held liable when the execution of a policy or custom of such municipality or corporation "inflicts the injury" for which the plaintiff seeks redress. Monell v. Dept. of Soc. Serv. of City of`N.Y., 436 U.S. 658, 694 (1978); see Natale v. Camden Cty. Con. Facility, 318 F.3d 575, 584 (3d Cir. 2003).
To establish a 'policy,' a plaintiff must show that "a decisionmaker possess[ing] final authority to establish municipal policy with respect to the action issues a final proclamation, policy or edict." Natale, 318 F.3d at 584 (internal quotation marks omitted) (brackets in original). To establish a 'custom,' a plaintiff must allege "an act that has not been formally approved by an appropriate decisionmaker, but that is so widespread as to have the force of law." Natale, 3l8F.3dat584 (internal quotation marks omitted).
1. Defendant Wetzel
The DOC Defendants argue that Davis has failed to assert actions of personal involvement by Defendant Wetzel because Davis has merely alleged a theory of respondeat superior and after the fact grievance review. (Doc. 17, at 6-7). Davis contends that Defendant Wetzel should have been notified, through the Court, of the retaliation that Davis was experiencing and, thus, Defendant Wetzel acquiesced in the unconstitutional conduct when he had an opportunity to "condemn and disassociate [himself] from the constitutional violations." (Doc. 23, at 3-4). In his Proposed Complaint, Davis avers that Defendant Wetzel "maintains a policy practice or custom, as secretary[, ] of approving and signing policy that violates prisoners constitutional rights an[d] acquiescence in the manner in which his staff uses the policy, practice or custom against inmates like Plaintiff." (Doc 20, at 2, 8).
It is well established that a municipal or federal official sued in a § 1983 action "may not be held liable for the unconstitutional conduct of their subordinates under a theory of respondeat superior." See Iqbal, 556 U.S. at 676; Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988) ("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, 845 F.2d at 1207. Additionally, "individual defendants who are policymakers may be liable under 1983 if it is shown that such defendants, 'with deliberate indifference to the consequences, established and maintained a policy, practice or custom which directly caused [the] constitutional harm.'" A.M., 372 F.3d at 586 (quoting Stoneking, 882 F.2d at725).
Here, Davis makes conclusions and assumptions about Wetzel that are not supported by any further factual allegations besides Wetzel's position as the Secretary for the Pennsylvania Department of Corrections. See Phillips, 687 Fed.Appx. at 131 (stating that "vicarious liability is not enough" to show personal involvement as required when asserting a constitutional violation). Davis does not state how Wetzel gave "personal direction or [had] actual knowledge and acquiescence" of the injuries to which he suffered. See Rode, 845 F.2d at 1207. Davis must assert "more than labels and conclusions" in order to provide claims against a defendant. See Twombly, 550 U.S. at 555. Even when construing his factual assertions as true, Davis has not sufficiently alleged that Wetzel "established a policy, practice, or custom that directly caused the harms that [Davis] allegedly endured," or that Wetzel was directly involved with such harms. See Phillips, 687 Fed.Appx. at 131. Mere conclusory statements are not enough to assert actual knowledge or a policy, practice, or custom. See Twombly, 550 U.S. at 555. Davis makes vague allegations that Defendant Wetzel maintains a policy, practice, or custom of signing policies that violate constitutional rights. (Doc. 20, at 2). However, these allegations do not provide a specific policy that was signed by Defendant Wetzel regarding Davis's failure to receive insulin treatments or the theft of his property. Defendant Wetzel may have been involved in crafting the COVID-19 library policies, however Davis does not challenge that policy, but instead uses it as an explanation for his failure to exhaust his administrative remedies. Davis has failed to state a claim of personal involvement against Defendant Wetzel. See Phillips, 687 Fed.Appx. at 131 (finding that plaintiff failed to state a claim when he "did not plead facts sufficient to allege [defendant] established a policy, practice, or custom that directly caused the harms that [plaintiff] allegedly endured" or that the defendant "participated in, directed, or had knowledge of (and acquiesced to) any of the constitutional violations"). Therefore, it is recommended that Davis's claims against Defendant Wetzel be dismissed.
2. Defendant Ferguson
The DOC Defendants state that Davis fails to establish Defendant Ferguson's personal involvement because he requested her help and grievance decision after the alleged conduct occurred. (Doc. 17, at 8). Davis argues that he spoke with and wrote to Defendant Ferguson about the constitutional violations, but "she refused to go against her officers." (Doc. 23, at 3). In his Proposed Complaint, Davis states that "Defendant Ferguson's assistance was sought[, but] she refused to act." (Doc. 20, at 9). Davis alleges that Defendant Ferguson informed him that she would "not g[o] against [her] officers" and encouraged Davis to resolve the issue with Sergeant Curran. (Doc. 20, at 9). Additionally, Davis alleges that Defendant Ferguson failed to reimburse him for his stolen boots and damaged radio or the remainder of his missing property. (Doc. 20, at 10). Here, Davis has alleged personal involvement on behalf of Defendant Ferguson in regard to her failure to remedy the alleged Constitutional wrongs of her officers, but not as it pertains to Defendant Ferguson's response to Davis's grievances.
Davis sufficiently alleges personal involvement as to his claims against Defendant Ferguson regarding her failure to act when he informed her multiple times about the constitutional violations of her subordinates. "[A] supervisor may be held liable for 'having knowledge of and acquiescing in their subordinates' violations." Powell v. Wetzel, No. 1:12-cv-01684, 2014 WL 2864686, at *3 (M.D. Pa. June 24, 2014) (quoting Cash v. Wetzel, 8 F.Supp.3d 644, 663 (E.D. Pa. Mar. 26, 2014); see also Broadwater v. Fow, 945 F.Supp.2d 574, 588 (M.D. Pa. 2013) ("Mere knowledge and acquiescence in a subordinate's constitutional violations may also qualify as personal involvement.") (citation omitted); Argueta v. U.S. Immigr. & Customs Enf't, 643 F.3d 60, 72 (3d Cir. 2011) ("Personal involvement can be shown through allegations of personal direction or of actual knowledge and acquiescence.") (internal quotations omitted). Davis states that he wrote a letter to Defendant Ferguson informing her that his property had been stolen and that he also had an in-person conversation with Defendant Ferguson regarding the same issue, but she failed to act stating that she could not "g[o] against [her] officers." (Doc. 20, at 8-9). Thus, Davis has sufficiently alleged that Defendant Ferguson had "knowledge of and acquiesce[ed] in [her] subordinates' violations." See Powell, 2014 WL 2864686, at *3 (finding that when a "[p]laintiff allege[d] that he contacted [the defendant] several times and requested that he return his [property] and [the defendant] refused" the plaintiff had adequately plead an allegation of personal involvement).
Davis has failed to allege the personal involvement of Defendant Ferguson as it pertains to her failure to adequately reimburse Davis in response to his grievance. Davis states that Defendant Ferguson did not reimburse him for his stolen boots, the destruction of his radio, his remaining missing property, or the $197.00 he had paid to ship his items when he was transferred to the other facilities. (Doc. 20, at 10). It is established that "inmates have no constitutionally protected right to a grievance procedure." Hakala v. Klem, 2009 WL 3852787, at *5 (M.D. Pa. 2009); see also Jones v. N.C. Prisoners'Lab. Union, Inc., 433 U.S. 119, 137-38 (1977). The right of inmates to seek investigation of their grievances is limited to their right of access to the courts. Hakala, 2009 WL 3852787, at *5. "[T]he failure to favorably address, respond to and/or investigate a grievance, as well as the denial of a grievance appeal do[es] not implicate a constitutional right." Hakala, 2009 WL 3852787, at *5. Davis challenges Defendant Ferguson's decision to reimburse him for his typewriter and not for the other stolen property. (Doc. 20, at 10). Accordingly, Davis challenges Defendant Ferguson's "failure to favorably address [his] grievance." See Hakala, 2009 WL 3852787, at *5; (Doc. 20, at 10). Because a prisoner does not have a constitutional right to grievance procedures, Davis has failed to state a constitutional violation, or personal involvement thereof, regarding Defendant Ferguson's decision and reimbursement of Davis's alleged stolen property. See Hakala, 2009 WL 3852787, at *5.
Davis has sufficiently alleged personal involvement at the pleading stage of this litigation to state a claim against Defendant Ferguson regarding her acquiescence in her officers' actions. However, Davis has failed to allege Defendant Ferguson's personal involvement or a constitutional violation as it pertains to her insufficient resolution of his grievance. Because a prisoner does not have a Constitutional right to grievance procedures, it is recommended that Davis's claim pertaining to Defendant Ferguson's resolution of his grievance be dismissed with prejudice.
3. Defendants Steinhart, Noel, Wenhold, Silva, Grego, and Cowan
The DOC Defendants assert that Davis fails to establish personal involvement as to Defendants Steinhart, Noel, Wenhold, Silva, and Grego because Davis does not "plead any facts as to "how these individuals were personal involved with any violations regarding his property" or if "they were in a position to 'restore his property." (Doc. 17, at 9). Additionally, the Correct Care Defendants argue that Defendant Cowan is only mentioned in the heading of Davis's Complaint and "one lone paragraph," which is insufficient to allege personal involvement. (Doc. 31, at 5-6). Davis contends that the named Defendants should have been notified through the Court of the retaliation Davis was experiencing and, thus, acquiesced in the unconstitutional conduct when they had an opportunity to "condemn and disassociate themselves from the constitutional violations." (Doc. 23, at 3-4).
In his Proposed Complaint, Davis states that Defendants Steinhart, Noel, Wenhold, Silva, Grego, and Cowan "were asked to intervene unless they were involved [with the theft of Davis's property]." (Doc. 20, at 7-8). Davis further alleges that Defendant Cowan "is [a CCS] representative ...[, ] deals directly with Defendant Noel. . . [and] is a member of the Hepatitis C Treatment Committee and approves and den[ie]s treatment." (Doc. 20, at 3). Davis's allegations against Defendants Steinhart, Noel, Wenhold, Silva, Grego, and Cowan are overly broad and indistinct. It is unclear whether Defendants Steinhart, Noel, Wenhold, Silva, Grego, and Cowan had any duty to intervene due to the subjective nature of the request. Additionally, it is unclear what actions Defendants Steinhart, Noel, Wenhold, Silva, Grego, and Cowan were being asked to take or how their failure to take these actions violated Davis's constitutional rights. Thus, Davis has failed to allege any personal involvement from Defendants Steinhart, Noel, Wenhold, Silva, Grego, and Cowan because he has not alleged any actions on their part in the Proposed Complaint. (Doc. 20). See Iqbal, 556 U.S. at 676. Additionally, Davis does not assert any particularized claims of supervisory liability within the body of his Proposed Complaint as to Defendant Cowan. Although Davis attempts to assert supervisory liability regarding his involvement with another Defendant and his position as a member of the Hepatitis C Treatment Committee, these assertions are vague and do not provide any guidance as to what acts Defendant Cowan committed that allegedly violated Davis's rights or how they tie back to the alleged constitutional violations from the Proposed Complaint. (Doc. 20, at 3). Because Davis has failed to allege personal involvement, or any action attributed to Defendants Steinhart, Noel, Wenhold, Silva, Grego, and Cowan it is recommended that the claims against them be dismissed.
4. Defendant Ranker
The DOC Defendants argue that Davis fails to allege personal involvement on the part of Defendant Ranker because Ranker received notice "after the fact." (Doc. 17, at 10). Additionally, the DOC Defendants claim that the allegations are devoid of facts asserting Defendant Ranker's knowledge or involvement in Davis's failure to receive insulin treatments. Davis contends that Defendant Ranker acquiesced or was directly involved in the unconstitutional conduct and had an opportunity to "condemn and disassociate [himself] from the constitutional violations." (Doc. 23, at 4). Davis asserts multiple claims against Defendant Ranker including his failure to intervene in the theft of Davis's property, his request for Davis to refrain from using Davis's diabetic medical diagnosis and comments regarding the diagnosis in existing litigation, and his comments to nurses about pending civil suits filed against him by Davis. (Doc. 20, at 8, 11, 13). However, none of these statements amount to a cognizable claim asserting personal involvement in a constitutional violation. Davis implies that Defendant Ranker's comments toward Defendant Cowden are connected to his failure to receive insulin injections. However, such a statement is not discernable. Davis does not indicate whether Defendant Ranker knew of his failure to receive insulin treatments or made intentional comments to prevent Davis from receiving insulin treatments. Additionally, Davis's claims that Ranker was "asked to intervene" are overly broad and vague. (Doc. 20, at 8); see supra.
Davis has failed to allege how Defendant Ranker was personally involved in any unconstitutional conduct. Therefore, it is recommended that the Court dismiss Davis's claims as they pertain to Defendant Ranker.
5. Correct Care Solutions
The Correct Care Defendants allege that Davis has failed to demonstrate that CCS "maintained a custom or policy which has led to his alleged constitutional harm." (Doc. 31, at 8). Specifically, the Correct Care Defendants state that Davis makes no definitive allegations as to what custom or policy of deliberate indifference to Davis's diabetes or access to insulin CCS maintained. (Doc. 31, at 10). Davis counters that CCS was provided with "knowledge that Plaintiff was in imminent danger and required medical attention" and that CCS failed to intervene in the denial of Davis's treatment demonstrating a pattern of "acquiesce[ence] when their employers or employees violate the constitution." (Doc. 32, at 7-8).
It is well established that "[a] defendant in a civil rights action must have personal involvement in the alleged wrongs to be liable, and cannot be held responsible for a constitutional violation which he or she neither participated in nor approved." Baraka v. McGreevey, 481 F.3d 187, 210 (3d Cir. 2007) (citations and quotations omitted). In Monell, the Supreme Court determined that, while municipal bodies may not be sued solely for violations perpetrated by its employees or agents, "it is when execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under § 1983." Monell, 436 U.S. 658, 694 (1978). A private corporation contracted by a prison to provide health care for inmates cannot be held liable on a respondeat superior theory; rather, it can only be held liable for constitutional violations if it has a custom or policy exhibiting deliberate indifference to a prisoner's serious medical needs. Moore v. Wetzel, No. 1:l8-CV-1523, 2019 WL 1397405, at *7 (M.D. Pa. Mar. 6, 2019), report and recommendation adopted, No. l:18-CV-1523, 2019 WL 1383631 (M.D. Pa. Mar. 27, 2019); citing Henry v. Buskirk, 2011 U.S. Dist. LEXIS 18644 (E.D. Pa. 2011) (internal citations omitted).
Accordingly, to state a viable § 1983 claim against CCS, the Complaint must set forth "facts to state a claim that [it] had a policy, custom, or practice, and that the policy, custom, or practice caused the constitutional violation at issue." See Sims v. Wexford Health Sources, 635 Fed.Appx. 16, 20 (3d Cir. 2015) (quoting Natale v. Camden Cty. Correctional Facility, 318 F.3d 575, 583 (3d Cir. 2003)); Chimenti, 2017 WL 3394605 at *l 1 (same); see also Park v. Veasie, 720 F.Supp.2d 658, 667 (M.D. Pa. 2010) ("To establish liability under Monell, a plaintiff must identify the challenged policy, attribute it to the [policymaker] itself, and show a causal link between the execution of the policy and the injury suffered.") (citing Losch v. Borough of Parkesburg, 736 F.2d 903, 910 (3d Cir. 1984)). The municipal policy or custom must either be unconstitutional itself or be the "moving force" behind the constitutional deprivation. Thomas v. Cumberland Cty., 749 F.3d 217, 222 (3d Cir. 2014) (citation omitted). Causation can be established either by demonstrating that the policy or custom is facially unconstitutional or "by demonstrating that the municipal action was taken with deliberate indifference as to its known or obvious consequences." Berg v. Cty. of Allegheny, 219 F.3d 261, 276 (3d Cir. 2000).
Davis alleges that Defendant CCS "has a policy, custom or practice of adopting its employers['] policies, practices or customs and execut[ing] them as its own." (Doc. 20, at 8). Such an allegation is insufficient to demonstrate a policy or custom. To establish a 'policy,' a plaintiff must show that "a decisionmaker possess[ing] final authority to establish municipal policy with respect to the action issues a final proclamation, policy or edict." Natale, 318 F.3d at 584 (quotation omitted). Davis has not provided facts regarding any type of decisionmaking process or "a final proclamation" of the policy he alleges. See Natale, 318 F.3d at 584. To establish a 'custom,' a plaintiff must allege "an act that has not been formally approved by an appropriate decisionmaker, but that is so widespread as to have the force of law." Natale, 318 F.3d at 584 (quotation omitted). Davis attempts to allege a custom employed by CCS; however, he fails to provide any facts regarding the widespread nature of his accusations. Additionally, Davis makes generalized statements that CCS "either directly retaliated or acquiesce[d] in retaliation" and failed to intervene. (Doc. 20, at 14). However, Davis fails to allege, beyond mere conclusory statements of acquiescence to staff conduct, how CCS maintained a policy or custom contrary to his rights. (Doc. 20, at 8)
An entity acting under color of state law may be held liable when (1) a generally applicable policy is announced and the complained of act is an implementation of that policy, (2) no policy has been announced, but federal law has been violated by an act of the policymaker itself, or (3) when no affirmative act has occurred and the need to act "is so obvious, and the inadequacy of existing practice so likely to result in the violation of constitutional rights, that the policymaker can reasonably be said to have been deliberately indifferent to the need." Natale, 318 F.3d at 584. Davis has not alleged an official policy, nor has he sufficiently alleged acts by CCS violative of federal law. Therefore, the Court turns to whether Davis has sufficiently alleged actions "so obvious" that CCS "can reasonably be said to have been deliberately indifferent to [his] need[s]." SeeNatale, 318 F.3d at 584. Here, Davis alleges that CCS failed to intervene in the alleged retaliatory conduct and adopts its employers' and employee's practices and executes them as its own. (Doc. 20, at 8, 14). This allegation is overbroad as it encompasses every policy of CCS's employers and employees and is also vague in that it does not point to any particular policy that CCS implemented, or should have implemented, that violated Davis's rights. Davis has failed to plead facts that demonstrate a link between any CCS policy and the injuries that he sustained. See Robinson v. Fair Acres Geriatric Ctr., 722 Fed.Appx. 194, 199 (3d Cir. 2018). Therefore, it is recommended that Davis's claims as to CCS be dismissed.
D. Access to Courts
The DOC Defendants submit that Davis has failed to allege actual injury regarding his access to courts claim and the claim should be dismissed. (Doc. 17, at 12-13). Davis responds that his access to courts claim should be preserved because, at the time his property was stolen, he had three pending actions and Defendants' actions of theft prevented him from adequately pleading his case and obtaining counsel. (Doc. 23, at 5-7).
Prisoners maintain a "fundamental constitutional right of access to the courts," embodied in the First and Fourteenth Amendments. Lewis v. Casey, 518 U.S. 343, 346 (1996) (quoting Bounds v. Smith, 430 U.S. 817, 828 (1977)). Where a prisoner asserts that defendants' actions have inhibited his opportunity to present a past legal claim, he must show (1) he suffered an actual injury-that is, that he lost a chance to pursue a "nonfrivolous" or "arguable" underlying claim because of the alleged interference; and (2) he has no other "remedy that may be awarded as recompense" for the lost claim other than in the present denial-of-access suit. Christopher v. Harbury, 536 U.S. 403, 415 (2002); see also Monroe v. Beard, 536 F.3d 198, 205 (3d Cir. 2008). However, if "an inmate does not allege an actual injury to his ability to litigate a claim, his constitutional right of access to the courts has not been violated." Caldwell v. Beard, 305 Fed.Appx. 1, 3 (3d Cir. 2008) (not precedential). Thus, a prisoner-plaintiff need not allege that the violation resulted from a "pattern and practice" or explicit policy but must assert an actual injury. See Williams, No. 1:13-CV-00849, 2015 WL 4729438, at *4 (M.D. Pa. Aug. 10, 2015). "An actual injury occurs when the prisoner is prevented from or has lost the opportunity to pursue a 'nonfrivolous' and 'arguable' claim." Garcia v. Dechan, 384 Fed.Appx. 94, 95 (3d. Cir. 2010) (quoting Christopher, 536 U.S. at 415; see also Njos v. Argueta, Civ. Action No. 3:12-CV-1038, 2015 WL 5569107, at *3 (M.D. Pa. Sep. 22, 2015) ("To [allege an actual injury], a plaintiff must show that the actions of the prison officials hindered the prisoner's efforts to pursue a nonfrivolous claim, (citing Monroe, 536 F.3d at 205)). Specifically, "[t]he complaint must describe the underlying arguable claim well enough to show that it is 'more than mere hope,' and it must describe the 'lost remedy.'" Monroe, 536 F.3d at 205-06 (quoting Christopher, 536 U.S. at 416).
Davis has sufficiently asserted an actual injury at this stage of the proceedings. "The confiscation or destruction of a prisoner's legal papers has been found to violate a prisoner's right of access to the courts." Brown v. Smith, Civ. Action No. 3:12-CV-00446, 2014 WL 3893824, at *2 (M.D. Pa. Aug. 7, 2014) (citing Heller v. Keenhold, No. Civ.A.1:04-CV-1893, 2006 WL 759647, at *4 (citing cases)). Davis stated that he "had obtained newly discovered evidence that established his innocence" and that the Defendants "destroyed his legal property." (Doc. 23, at 5-6; Doc. 20, at 10). Davis also argues that he was unable to procure counsel to present a Post-Conviction Relief Act ("PCRA") petition. (Doc. 23, at 5-6). Liberally construing Davis's Proposed Complaint, the Court interprets his claim to be that when Defendants allegedly stole Davis's legal property, it included newly discovered evidence that required the assistance of counsel to introduce the evidence in a PCRA petition. (Doc. 20, at 10; Doc. 23, at 5-6). In his Proposed Complaint, Davis alleges that he lost a legal dispute due to Defendants alleged theft, which the Court interprets to be the criminal case to which Davis refers in his brief in opposition. (Doc. 20, at 10; Doc. 23, at 5-6). Because Davis could not obtain counsel to present his claim because the evidence suggesting the veracity of that claim was no longer in his possession, he lost the opportunity to present his case and consequently lost his legal dispute. (Doc. 20, at 20; Doc. 23, at 5, 6). Therefore, Davis has alleged that he suffered actual injury in asserting that he lost the opportunity to pursue an arguable claim of innocence with the assistance of newly discovered evidence. See Brown, 2014 WL 3893824, at *2 (finding that a plaintiff sufficiently stated an access to courts claim when he alleged that documents were confiscated by prison officials that were needed to assist the plaintiffs counsel in the filing of a PCRA petition); see also Heller, 2006 WL 759647, at *4 (documents that were taken during the transfer of a plaintiff to another prison were important in defending a pending criminal appeal and the complaint that reflected their seizure and the hindrance to the plaintiffs ability to present a defense in a pending criminal matter "stated a substantive due process claim" of the denial of access to the courts at the dismissal stage of litigation) (examining Zilich v. Lucht, 981 F.2d 694, 694-96 (3d Cir. 1992)).
E. Leave to Amend
The Third Circuit has instructed that if a complaint is vulnerable to dismissal for failure to state a claim, the district court must permit a curative amendment, unless an amendment would be inequitable or futile. Grayson v. Mayview State Hosp, 293 F.3d 103, 108 (3d Cir. 2002). The Third Circuit has also acknowledged that a district court has "substantial leeway in deciding whether to grant leave to amend." Lake v. Arnold, 232 F.3d 360, 373 (3d Cir. 2000); see also Ruffin v. Mooney, No. 3:16-1987, 2017 WL 3390361, at *2 (M.D. Pa. Jan. 31, 2017) (dismissing prisoner-plaintiffs case without prejudice where it was unclear whether he was seeking relief under § 1983 or a habeas statute). As the Proposed Complaint in its current form does not set forth the proper factual allegations connected to First and Eighth Amendment legal claims against Defendants Wetzel, Steinhart, Noel, Wenhold, Silva, Grego, Cowan, Ranker, and CCS, dismissal is warranted. (Doc. 20). However, out of an abundance of caution, and to preserve Davis's rights as a pro se litigant, the Court will allow him to file an amended complaint regarding the claims against Defendants Wetzel, Steinhart, Noel, Wenhold, Silva, Grego, Cowan, Ranker, and CCS specifically alleging their personal involvement in the violation of Davis's Constitutional rights. The amended complaint must fully allege every claim Davis wishes to pursue and be a pleading that stands by itself without reference to the original complaint or Proposed Complaint. See Young, 809 F.Supp. 1185 at 1198. Failure to file an amended complaint in accordance with the aforementioned requirements may result in the dismissal of this action in its entirety. Davis need not file a motion to amend his complaint but may simply file an amended complaint with this Court.
IV. Conclusion
Based on the foregoing, it is respectfully recommended that the DOC Defendants' Motion to Dismiss (Doc. 16) be DENIED in part and GRANTED in part; the Correct Care Defendants' Motion to Dismiss (Doc. 30) be DENIED in part and GRANTED in part; and Plaintiffs Motion to Supplement Complaint (Doc. 19) be GRANTED. It is further recommended that Plaintiff be granted leave to file an amended complaint as it pertains to the issues of personal involvement of Defendants Wetzel, Steinhart, Noel, Wenhold, Silva, Grego, Cowan, Ranker, and CCS. As noted above, that amended complaint should fully allege every claim Davis wishes to pursue, fully consider this Report and Recommendation, as adopted or modified by the District Court, and be a pleading that stands by itself without reference to the original or proposed complaints previously filed in this matter.
NOTICE
NOTICE IS HEREBY GIVEN that the undersigned has entered the foregoing Report and Recommendation dated September 18, 2021. Any party may obtain a review of the Report and Recommendation pursuant to Rule 72.3, which provides:
Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636(b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses or recommit the matter to the magistrate judge with instructions.