Opinion
1:21-cv-344
06-15-2022
BENNIE GRAVES, Plaintiff v. KENNETH J. GAMBLE, et al. . Defendants
SUSAN PARADISE BAXTER UNITED STATES DISTRICT JUDGE
MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
RICHARD A. LANZILLO UNITED STATES MAGISTRATE JUDGE
I. Recommendation
It is recommended that Plaintiff Bennie Graves' claims against former Erie County Sheriff John Loomis be dismissed for failure to state a claim in accordance with 28 U.S.C. § 1915(e).
II. Report
A. Background
Plaintiff, an inmate confined at SCI-Albion, commenced this action by filing a civil rights complaint pursuant to 42 U.S.C. § 1983 against Erie County Prothonotary Kenneth J. Gamble, Deputy Prothonotary Kelly Malone, and former Sheriff John Loomis. ECF No. 1. The Court granted Plaintiffs motion to proceed in forma pauperis on March 31, 2022. ECF No. 12.
In his complaint, Plaintiff asserts that he attempted to initiate a state tort action in the Court of Common Pleas of Erie County Court on November 7, 2019. ECF No. 1-1 ¶ 1. About a month later, the office of the prothonotary returned all 14 service copies of his complaint, as well as an order from the court noting that his application to proceed in forma pauperis had been granted, without any explanation or instructions. Id. ¶ 2. In response to Plaintiffs subsequent inquiry, Gamble advised him in a letter that he would have to contact the Sheriff s office for information on service fees. Id. ¶ 3. Plaintiff then sent two letters to the Sheriffs office asking for information but received no response. Id. ¶¶ 4-5. Plaintiff maintains that Gamble and Malone had a judicial duty to forward the service copies of his complaint to the sheriffs office for service and that Loomis had a “legal/professional duty” to respond to Plaintiffs inquiries. Id. ¶¶ 11-12.
B. Standard for review
Having been granted leave to proceed in forma pauperis, see ECF No. 4, 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. Analysis
Applying the principles above, the Court must screen and dismiss Plaintiffs claim against Loomis for lack of personal involvement in the deprivation of a constitutional right. It is axiomatic that a § 1983 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)). This means that each defendant must have played an “affirmative part” in the complained-of misconduct. Iqbal, 556 U.S. at 677 (“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.”); Oliver v. Beard, 358 Fed.Appx. 297, 300 (3d Cir. 2009). 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).
Here, Plaintiffs only claim against Loomis is that the sheriffs office twice failed to respond to letters from Plaintiff inquiring how to serve his complaint. To the extent that Plaintiff is attempting to sue Loomis in his individual capacity, there is nothing in the complaint to suggest that Loomis ever saw or learned of Plaintiff s letters or that he personally failed to respond to them. And, to the extent that Plaintiff may be attempting to sue Loomis in his official capacity as sheriff of Erie County, he has failed to allege that the purported violation stemmed from the existence of an unconstitutional custom, policy, ordinance, or regulation, as would be required to sustain a claim pursuant to Monell v. Department of Social Services, 436 U.S. 658 (1978). Accordingly, Loomis must be dismissed from this action for lack of personal involvement.
III. Conclusion
For the foregoing reasons, it is respectfully recommended that Loomis be terminated as a Defendant in this action pursuant to 28 U.S.C. § 1915(e). The Court will independently direct service on the remaining Defendants by separate order.
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).