Opinion
3:22-cv-30-SLH-KAP
03-18-2022
TAREEK HEMINGWAY, Plaintiff v. HOLLIDAYSBURG, PA, et al., Defendants
REPORT AND RECOMMENDATION
Keith A. Pesto, United States Magistrate Judge.
Recommendation
In response to my previous Report and Recommendation, plaintiff filed an amendment to the complaint at ECF no. 8. I recommend the amendment and the original Complaint be served on Furio at the direction of the plaintiff and dismissed without further leave to amend as to the other defendants for failure to state a claim against them.
Report
To recapitulate the previous Report and Recommendation, plaintiff Tareek Hemingway's original Complaint named seven defendants - Hollidaysburg PA/ Blair County, Blair County Prison, Blair County Prison Board, corrections officer Maria Furio, the Blair County Prison's warden, Abby Tate, a corrections officer surnamed Musslemen, and corrections officer Mark Yingling - and alleged that on October 10, 2020, corrections officer Furio walked into his cell and began punching one of the other inmates there; she then returned sometime later and stabbed Hemingway in the neck with a colored pencil. Hemingway alleged he suffered physical injury and suffers from ongoing emotional distress. I found that the Complaint adequately stated an Eighth Amendment claim against Furio, but not against the other defendants.
Hemingway amended the complaint (the document is styled “Amendment of Complaint, ” and given Hemingway's pro se status it and the Complaint should be read as one document) by submitting a narrative explaining why he thinks the other named defendants are liable to him. He in effect concedes that “Blair County Prison” should be dismissed by stating that he does not want money damages from that entity. He does want changes made at the prison but since he is not incarcerated there he has no standing to seek injunctive relief. See Jones v. Unknown D.O.C. Bus Driver & Transportation Crew, 944 F.3d 478, 483 (3d Cir.2019), citing City of Los Angeles v. Lyons, 461 U.S. 95, 111-12 (1983). He also withdraws his complaint against “Hollidaysburg/ Blair County” in part: he admits “Hollidaysburg” (the county seat, where the prison is located) has nothing to do with the case, but he asserts that “Blair County” is a proper defendant because the violation of his rights was the product of an “official policy or unofficial custom.” Defendant Tate is expressly claimed to be liable based on a theory of supervisory liability and also for her negligence because she “had to know there were going to be problems for me” and “she should have handled it [presumably a reference to all events at the prison] with a little more care.” Hemingway names the Blair County Prison Board because it “makes the rules” and its members were “aw[are] of what was happ[en]ing to me.”
Defendant corrections officer Yingling again is alleged to have told one of the inmate witnesses to the attack “to keep his mouth shut.” This is described as “retaliation” against Hemingway in violation of the First Amendment. Defendant corrections officer Musslemen is alleged to have called Hemingway a “nigger” in a conversation overheard by Hemingway in October 2020. This is also described as “retaliation” against Hemingway.
Plaintiff still has a claim against Furio, and still has no claim against any other defendant. As I already have written, Hemingway is obliged to allege facts permitting a conclusion that each named defendant violated his rights. See Fed.R.Civ.P. 8(a). He has not stated a claim against Tate, the Prison Board, or Blair County because civil rights claims do not imply vicarious or respondeat superior liability. See Monell v. New York City Dep't of Social Services, 436 U.S. 658, 690-91 (1978). A conclusory assertion that Furio's action were pursuant to a custom or policy is inadequate. Ashcroft v. Iqbal, 556 U.S. 662, 680-81 (2009). A claim of negligence is inadequate to state a federal claim because negligent conduct by a state official, even when it causes injury, does not constitute a deprivation under the Due Process Clause. Daniels v. Williams, 474 U.S. 327, 331-32 (1986). (Plaintiff does not attempt to state a claim under state law so there is no reason to formally rule on any ancillary state law claim, nor any reason to exercise supplementary jurisdiction over such a claim if plaintiff did so attempt.)
Finally, no claim is stated against Yingling or Musslemen. A retaliation claim is alleged by plausible claims of (1) constitutionally protected conduct; (2) adverse action at the hands of the defendant prison official; and (3) a causal connection between the two such that the constitutionally protected conduct was a substantial or motivating factor for the adverse action. Rauser v. Horn, 241 F.3d 330, 333 (3d Cir.2001); Mitchell v. Horn, 318 F.3d 523, 530 (3d Cir.2003). Leaving aside everything else, Hemingway alleges no adverse action sufficient to state a legal claim.
The Court of Appeals, in Grayson v. Mayview State Hospital, 293 F.3d 103 (3d Cir.2002) and similar cases, directs district courts to allow plaintiffs in civil rights cases leave to amend unless that amendment is “futile” or “inequitable.” It is inequitable to have the screening function of the Prison Litigation Reform Act turned into an iterative process of trial and error pleading. No further amendment of the complaint is permitted, and all defendants except Furio should be dismissed.
Pursuant to 28 U.S.C.§ 636(b)(1), the plaintiff can within fourteen days file written objections to my recommendation. In the absence of timely and specific objections, any appeal would be severely hampered or entirely defaulted. See EEOC v. City of Long Branch, 866 F.3d 93, 100 (3d Cir. 2017) (describing standard of appellate review when no timely and specific objections are filed as limited to review for plain error).