Opinion
3:21-cv-8-SLH-KAP
07-11-2022
LAVOND A. HILL, Plaintiff, v. JOHN E. WETZEL, et al. Defendants
REPORT AND RECOMMENDATION
KEITH A. PESTO, UNITED STATES MAGISTRATE JUDGE
Recommendation
The amended complaint at ECF no. 25 should be dismissed for failure to state a claim without further leave to amend, except for one claim explained below.
Report
Plaintiff Lavond Hill, now an inmate at S.C.I. Phoenix, submitted a complaint (dated January 14, 2021) and motion to proceed in forma pauperis in mid-January 2021, when he was an inmate at S.C.I. Houtzdale. His background circumstances are familiar to the Court from his litigation at Hill v. Rozum, Case No. 3:ii-cv-97-KRG-KAP (W.D.Pa. June 30, 2011), affd, No. 11-2986 (3d Cir. October 12, 2011), and Hill v. Wetzel, Case No. 2:19-CV-96O-SLH-KAP (W.D.Pa. September 29, 2021), appeal docketed, No. 21-3009 (3d Cir.).
I screened the complaint and accompanying motions for preliminary injunctive relief and recommended the motions be denied and the complaint dismissed for failure to state a claim, with leave to amend. No objections were filed. By Memorandum Order of September 29, 2021, ECF no. 22, the Court permitted plaintiff to file an amended complaint within 20 days. After a partial copy submitted on October 20, 2021, ECF no. 23, plaintiff filed an Amended Complaint on December 17, 2021, at ECF no. 25.
The Amended Complaint does practically nothing to correct the deficiencies identified in the original complaint (in fact it deletes most of the allegations of the original complaint about events in 2020) because it is mostly devoted to relating events and grievances after the filing of the original complaint in what clearly is an attempt to state new claims, in some cases against new defendants.
As I have often written, the filing of a complaint by an inmate does not make the court an ombudsman or allow that inmate to package in one piece of civil litigation every successive grievance the inmate may have, because even when it seeks prospective relief any complaint is a backward-looking document that asks a court to determine legal rights and duties as of a fixed point in time, a point in time that of necessity is before the complaint was filed. For complaints by inmate plaintiffs, this is amplified by the Prison Litigation Reform Act's (PLRA's) amendment to the Civil Rights of Institutionalized Persons Act (CRIPA) at 42 U.S.C.§ 1997e(a), which states:
No action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted. (my emphasis).
This means that a complaint filed before administrative remedies are exhausted is premature and cannot be entertained. See Booth v. Churner, 532 U.S. 731, 738 (2001). An inmate cannot evade that exhaustion requirement by filing a complaint containing one set of claims (exhausted or not) and then using that complaint as a placeholder to which subsequent claims (that cannot possibly have been exhausted before the complaint was filed because the events on which the claims are based had not happened) can be joined.
Looking at the amendments to the original complaint insofar as it alleged claims based on events before January 14, 2021, Amended Complaint ¶¶23-67, Hill alleges that on November 10, 2020, he was verbally sexually harassed by defendant N. Smith, and on November 13, 2020, N. Smith told Hill that Smith had spit in his food tray, leading Hill to not eat that meal. On January 5, 2021, a group of corrections officers came to remove property from Hill's cell, during which time Hill was handcuffed. Defendant Vicklund allegedly injured Hill's right wrist and elbow by violently pulling on the restraint attached to the cuffs; Vicklund also slammed Hill's face against the wall. Hill was seen in the medical department but not given any treatment.
After the event of January 5, 2021, defendant Proborsky placed Hill on various restrictions between January 5 and January 15, 2021, and wrote a false misconduct that led defendant hearing officer Nunez to impose a punishment on Hill of 15 additional days in the RHU. During this time Hill was supposed to receive his electronic tablet “due to settling a civil dispute” in state court, Amended Complaint ¶57, but he did not receive it until January 16, 2021. On January 9, 2021, defendants DeLoretta and Moyer did not give Hill his breakfast tray.
The Amended Complaint, read liberally, asserts a Whitley v. Albers claim against defendant Vicklund for his allegedly gratuitous use of force on January 5, 2021. The balance of the complaint fails to state a claim against anyone. Although the allegations against N. Smith are distressing, there is no cause of action for verbal harassment. The implied injury Hill might have alleged from missing two meals in the course of three months is de minimis. Hill has no Fourth Amendment right not to have his cell searched (or not to be cuffed during the search) and his property confiscated. Hill alleges no injury from the temporary lack of access to his tablet or other property. Hill has no due process claim based on a conclusory allegation that a misconduct was false, or any due process right that would prevent his placement in the RHU for 15 days without any hearing at all.
Hill's attempt to pack each day's grievance into a single complaint by the conclusory allegation that every defendant is engaged in a conspiracy against him is as unavailing in this case as in his others. Federal Rule of Civil Procedure 20(a)(2) permits joinder of claims when:
(A) any right to relief is asserted against [the defendants] jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences; and
(B) any question of law or fact common to all defendants will arise in the action.
Under Rule 20(a)(2), claims that are unrelated because they do not share common questions of law or fact, or because they do not arise out of the same series of occurrences, cannot be lumped together. While Fed.R.Civ.P. 1 commands that pleadings be liberally construed to do justice with a minimum of delay and expense, Rule 1 and Rule 20 do not give license to join unrelated claims and defendants in one lawsuit. See Pruden v. SCI Camp Hill, 252 Fed.Appx. 436 (3d Cir.2007).
It is inequitable to allow Hill to submit yet another iteration of his complaint about events prior to January 14, 2021, and all claims and defendants except the Eighth Amendment claim against Vicklund should be dismissed from this action. Hill can raise any post-January 14 claims in a new complaint: Rule 20 and CRIPA make attempts to include them in this complaint futile.
Pursuant to 28 U.S.C.§ 636(b)(1), the parties are given notice that they have fourteen days to file written objections to this Report and Recommendation. The parties are advised that 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).