Opinion
3:24-cv-124-KAP
10-30-2024
JOSEPH HENSLEY, Plaintiff v. ALICIA SWANSON, Defendant
REPORT AND RECOMMENDATION
Keith A. Pesto, United States Magistrate Judge
Recommendation
Plaintiff Hensley's complaint, ECF no. 7, should be dismissed for failure to state a claim, without leave to amend.
Report
Plaintiff Hensley is an inmate familiar to the Court from litigation at 1:17-cv-00086-SPB-RAL, 2:18-cv-00355-SPB-RAL, 3:21-cv-00184-SPB-RAL, 3:22-cv-00150-SPB-KAP, 3:22-cv-00171-RAL, and 3:24-cv-00010-SPB-KAP. Since the complaint in this matter is subject to the Prison Litigation Reform Act, I am required to review it as soon as practicable after docketing in accordance with 28 U.S.C.§ 1915A:
(a) Screening.--The court shall review, before docketing, if feasible or, in any event, as soon as practicable after docketing, a complaint in a civil action in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity.
(b) Grounds for dismissal.--On review, the court shall identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint-
(1) is frivolous, malicious, or fails to state a claim upon which relief may be granted; or
(2) seeks monetary relief from a defendant who is immune from such relief.
This parallels the PLRA's requirements for litigants proceeding in forma pauperis, at 28 U.S.C.§ 1915(e)(2):
(2) Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that -
(A) the allegation of poverty is untrue; or
(B) the action or appeal -
(i) is frivolous or malicious;
(ii) fails to state a claim on which relief may be granted; or
(iii) seeks monetary relief against a defendant who is immune from such relief.
After being able to review the complaint today, I revoke my order directing service, and recommend dismissal without leave to amend. This is filed as a Report and Recommendation because in Burton v. Schamp, 25 F.4th 198 (3d Cir. 2022), the Court of Appeals held that in cases where judgment may be appropriate as to parties that have not consented before judgment to Magistrate Judge jurisdiction under 28 U.S.C.§ 636(b)(1)(C), the Magistrate Judge should proceed by Report and Recommendation to the District Court, which has Article III authority to dismiss parties and enter final judgment in the matter in favor of parties who have not filed a consent. Plaintiff has not returned a consent form and ordering service of a meritless complaint to determine whether parties in whose favor judgment would be entered would consent to Magistrate Judge jurisdiction under 28 U.S.C.§ 636(b)(1)(C) would waste scarce resources. Accordingly, regardless of any consent or lack thereof by the parties, this format is used because review indicates that this matter should be dismissed.
Hensley's brief Complaint contains two paragraphs supporting the Court's jurisdiction and venue, two paragraphs identifying the parties, one paragraph of material allegations, and seven paragraphs of remedies Hensley would like. Defendant Swanson is alleged to be the unit manager of Bravo Block at Houtzdale. Hensley alleges that he was at Houtzdale between November 21, 2023 and June 1, 2024, and during this time “inmates and staff smoke[d] in the buildings.” Hensley then claims smoking in public buildings violates the Clean Air Act (a piece of federal legislation) and attaches a copy of the inmate handbook citing the prohibition of indoor smoking in the Clean Indoor Air Act (a piece of state legislation). Hensley unnecessarily addresses exhaustion of administrative remedies with the conclusory allegation that he filed a grievance and Swanson “coerced [him] to drop it.”
Hensley's interpretation of the CAA and the CIAA are not allegations of fact entitled to any presumption of truth, and his assumption that he has a private cause of action under the CAA or the CIAA against Swanson for failing to prevent exposure to smoking by third parties is unwarranted. The Eighth Amendment is the appropriate source of law here. Fed.R.Civ.P. 8(a) requires a short and plain statement containing sufficient plausible factual matter that if accepted as true would state a legal claim under the correct legal standard. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). In the Supreme Court's words, a plaintiff must allege enough facts in the complaint to “nudge” a claim “across the line from conceivable to plausible.” Id., 556 U.S. at 683, quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007).
Under the Eighth Amendment, Hensley must allege that Swanson is personally responsible for some harm to Hensley, and that harm must be or have been caused by her deliberate or deliberately indifferent conduct. There is no federal claim for negligence because “the Due Process Clause is simply not implicated by a negligent act of an official causing unintended loss of or injury to life, liberty, or property.” Daniels v. Williams, 474 U.S. 327, 328 (1986); Davidson v. Cannon, 474 U.S. 344 (1986) (same). Hensley does not, by alleging that Swanson is a unit manager, alleges any claim for supervisory liability because there is no respondeat superior liability for civil rights claims. See Monell v. New York City Dep't of Social Services, 436 U.S. 658, 690-91 (1978) (municipal employers are liable for deprivation of civil rights caused by their own illegal customs and policies but are not liable for their employees' actions).
After Estelle v. Gamble, 429 U.S. 97, 106 (1976), any Eighth Amendment claim requires allegations of acts or omissions “sufficiently harmful to evidence deliberate indifference to serious medical needs.” Hensley alleges that he has various pulmonary conditions and that he “is having problems breathing.” A general claim of injury together with allegations about being exposed to smoking in unspecified amounts at unspecified times and places over a period of several months are not allegations of facts that would allow the inference that Swanson was or is deliberately indifferent to a serious risk to Hensley. Assuming Hensley were to beef up his barebones allegations to allege a nontrivial number of incidents took places in places and at times when Swanson was on duty and had the ability to halt the smoking, he still would have no claim against Swanson. Hensley has access to the prison medical unit (more precisely, Hensley offers nothing to indicate that Swanson is preventing him from reporting for care to the medical unit) and offers nothing that would suggest that the medical unit would not report any needed accommodation to Swanson. Alleging that a defendant was “deliberately indifferent” requires plausible allegations of fact allowing the conclusion that a defendant “knows of and disregards an excessive risk to inmate health or safety.” Farmer v. Brennan, supra, 511 U.S. at 837 (my emphasis). Hensley has no claim against unit manager Swanson because he presents no reason why she knew Hensley faced an excessive risk or needed a particular remedy. See Spruill v. Gillis, 372 F.3d 218, 236 (3d Cir. 2004). Hensley cannot bootstrap his way into a claim by amending his complaint to allege he complained to Swanson, because an allegation of complaints does not equal an allegation of knowledge.
The Court of Appeals directs district courts to allow plaintiffs in civil rights cases to amend inadequate complaints unless amendment is “futile” or “inequitable.” Grayson v. Mayview State Hospital, 293 F.3d 103 (3d Cir.2002). With two exceptions “federal courts treat pro se litigants the same as any other litigant.” Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 244 (3d Cir. 2013). Those exceptions are liberal construction of pleadings - which does not relieve pro se plaintiffs from alleging sufficient facts in their complaints - id., 704 F.3d at 245, and giving notice to pro se inmate litigants when a motion to dismiss will be treated as a summary judgment motion. Id. Only the first point is relevant here.
Liberal construction of pro se pleadings means paying attention to what the litigant has alleged and using common sense, not supplying what plaintiff has not alleged or imagining that unpleaded facts exist that only need hints from the court to be included in an amended complaint. As the Supreme Court directed in Ashcroft v. Iqbal, supra, 556 U.S. at 679:
Determining whether a complaint states a plausible claim for relief will [] be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense. [] But where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not “show[n]”-“that the pleader is entitled to relief.” Fed. Rule Civ. Proc. 8(a)(2). (cleaned up).Hensley's complaint does not show a convincing possibility of Swanson's misconduct that would justify letting him proceed further, much less an entitlement to relief against Swanson. Even disregarding Hensley's frequent filing of meritless pleadings in other cases it is not equitable to use the screening process as a trial and error method of seeking colorable federal claims. Based on what Hensley does allege, amending his federal claims is futile. No leave to amend the complaint is granted.
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).