Opinion
3:21-cv-8-SLH-KAP
08-01-2024
LAVOND HILL, Plaintiff v. JOHN E WETZEL, et al., Defendants
REPORT AND RECOMMENDATION
Keith A. Pesto, United States Magistrate Judge
RECOMMENDATION
I recommend that the Amended Complaint at ECF no. 30 be dismissed in part for failure to state a claim, without further leave to amend.
REPORT
Because plaintiff Hill is an inmate proceeding in forma pauperis and the defendants are governmental entities or employees, the complaint is subject to screening in accordance with the Prison Litigation Reform Act as codified at 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.Fed.R.Civ.P. 8(a) requires any complaint to be a short and plain statement containing sufficient factual matter that if accepted as true would state a legal claim that is plausible on its face. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). In the Supreme Court's words, 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). Plaintiff must in a nonconclusory way allege facts that permit the inference that each defendant he names caused the harm he alleges, both because Rule 8 requires that in every case, and because the evaluation of each defendant's qualified immunity must be conducted based on the facts alleged against that individual. See Rouse v. Plantier, 182 F.3d 192, 200 (3d Cir.1999). See also Evancho v. Fisher, 423 F.3d 347, 353 (3d Cir.2005); Chavarriaga v. New Jersey Department of Corrections, 806 F.3d 210, 222 (3d Cir. 2015).
The distinction between conclusions and allegations is one that is addressed at length in Ashcroft v. Iqbal:
We begin our analysis by identifying the allegations in the complaint that are not entitled to the assumption of truth. Respondent pleads that petitioners “knew of, condoned, and willfully and maliciously agreed to subject [him]” to harsh conditions of confinement “as a matter of policy, solely on account of [his] religion, race, and/or national origin and for no legitimate penological interest.” Complaint ¶ 96, App. to Pet. for Cert. 173a-174a. The complaint alleges that Ashcroft was the “principal architect” of this invidious policy, id., ¶ 10, at 157a, and that Mueller was “instrumental” in adopting and executing it, id., ¶ 11, at 157a. These bare assertions, much like the pleading of conspiracy in Twombly, amount to nothing more than a “formulaic recitation of the elements” of a constitutional discrimination claim, 550 U.S., at 555, 127 S.Ct. 1955, namely, that petitioners adopted a policy “ ‘because of,' not merely ‘in spite of,' its adverse effects upon an identifiable group,” Feeney, 442 U.S., at 279, 99 S.Ct. 2282. As such, the allegations are conclusory and not entitled to be assumed true. Twombly, 550 U.S., at 554-555, 127 S.Ct. 1955. To be clear, we do not reject these bald allegations on the ground that they are unrealistic or nonsensical. We do not so characterize them any more than the Court in Twombly rejected the plaintiffs' express allegation of a “ ‘contract, combination or conspiracy to prevent competitive entry,' ” id., at 551, 127 S.Ct. 1955, because it thought that claim too chimerical to be maintained. It is the conclusory nature of respondent's allegations, rather than their extravagantly fanciful nature, that disentitles them to the presumption of truth.556 U.S. at 680-81 (my emphasis). The Supreme Court makes it clear that a conclusory complaint cannot be allowed to go forward on the theory that discovery could turn up some factual support for its conclusions. Id., 556 U.S. at 686: “Because respondent's complaint is deficient under Rule 8, he is not entitled to discovery, cabined or otherwise.”
Hill, now an inmate at S.C.I. Phoenix, is familiar to this Court from his litigation at Hill v. Rozum, Case No. 3:11-cv-97-KRG-KAP (W.D.Pa. June 30, 2011), Cffd, No. 11-2986 (3d Cir. October 12, 2011), and Hill v. Wetzel, Case No. 2:19-cv-960-SLH-KAP (W.D.Pa. May 10, 2024), appeal docketed, No. 24-2171 (3d Cir.), and Hill in turn is familiar with Iqbal and the requirements of the PLRA. His original complaint, ECF no. 5, dated January 14, 2021, filed on January 15, 2021, asserted that Hill's constitutional rights had been violated by 13 defendants on various occasions from the day he arrived at S.C.I. Houtzdale from S.C.I. Fayette in June 2020. I screened the complaint and Hill's two motions for preliminary injunctive relief and recommended that the motions for injunctive relief be denied and that most of the complaint be dismissed for failure to state a claim, with leave to amend. ECF no. 17. 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 of a complaint was submitted on October 20, 2021, ECF no. 23, plaintiff filed an Amended Complaint on December 17, 2021, at ECF no. 25.
I screened the Amended Complaint in July 2022, ECF no. 27, and observed it did “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.”
Insofar as the first version of an Amended Complaint based its claims on events before January 14, 2021, Hill alleged 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 miss one meal. On January 5, 2021, a group of corrections officers came to remove property from Hill's cell. While Hill was handcuffed for this procedure defendant Vicklund allegedly injured Hill's right wrist and elbow by violently pulling on the restraint attached to the cuffs and slammed Hill's face against the wall. Hill was seen in the medical department but not given any treatment. No allegations allowed an inference that anyone believed Hill needed treatment or that that anyone's actions caused injury to Hill. Defendant Proborsky allegedly 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. Hill alleged that he was supposed to receive his electronic tablet as a result of a suit in state court, but he did not receive it until January 16, 2021. Finally, on January 9, 2021, defendants DeLoretta and Moyer did not give Hill a breakfast tray.
I recommended that a Whitley v. Albers claim against defendant Vicklund for his allegedly gratuitous use of force on January 5, 2021 go forward and that the balance of the complaint be dismissed without leave to amend for failure to state a claim. I also noted that “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,” and violated Fed.R.Civ.P 20(a)(2) by lumping together incidents that had only Hill in common. I noted that this did not prohibit Hill from bringing any post-January 14 claims in a new complaint.
Hill, by this time having been transferred to S.C.I. Phoenix, filed objections at ECF no. 28. In November 2022, ECF no. 29, the Court agreed that Hill had stated a Whitley v. Albers claim against defendant Vicklund, found that the Amended Complaint violated Rule 8 (“Plaintiffs Amended Complaint is over 320 paragraphs long and names over 50 individuals as Defendants ... is rambling, ambiguous, and does not give the named Defendants fair notice of the claims asserted against them.”) and gave Hill a third opportunity to amend the complaint.
Hill's third version is the Amended Complaint at ECF no. 30. At ¶¶19-24, Hill repeats the allegations that amounted to the Whitley v. Albers claim against Vicklund based on the events of January 5, 2021. Hill deletes all other claims from his second version that are based on events allegedly occurring before January 14, 2021. Instead, Hill alleges that in March, May, June, and July of 2021, various combinations of the 37 named defendants violated Hill's rights in various ways, allegedly as part of a pattern or practice of violating Hill's constitutional rights. ¶83.
Hill's latest version of a complaint repeats the conclusory style of pleading barred by Iqbal. Some allegations, if they were brought in separate complaints, would survive screening under Rule 8 because they are essentially the same claim as that made against Vicklund: in ¶37, Hill alleges a Whitley v. Albers claim against defendant Hummel; in ¶45, Hill alleges a Whitley v. Albers claim against defendant Ebersole. The rest of the complaint attempts to rope in additional defendants with the conclusion that all defendants acted at all times in furtherance of a custom or policy or common scheme to harm Hill. But it is unnecessary to parse the complaint on this point because even the two new claims that are not on their face deficient cannot go forward in this matter. As I observed two years ago, the PLRA amended the Civil Rights of Institutionalized Persons Act at 42 U.S.C.§ 1997e(a) to state:
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). As I stated then, an inmate cannot exhaust one claim, file a complaint, and then use that complaint to piggyback in additional claims as they are exhausted.
Two years ago, Hill objected to this facet of my recommendation by asserting that failure to exhaust is an affirmative defense that must be pleaded. ECF no. 28 at ¶4. The Court did not address the issue because it granted Hill leave to amend. That same issue is again presented by Hill's new version. Ordinarily, Hill's point that a failure to exhaust cannot ordinarily be the basis of the dismissal of a complaint at the screening stage is correct. But the availability of administrative remedies is a question of law, and when it involves a factual inquiry the presiding judge resolves any factual disputes relating to the exhaustion of administrative remedies in a nonjury proceeding. Spada v. Martinez, 663 Fed.Appx. 112, 114 (3d Cir. 2016). Once a defendant establishes that the inmate failed to resort to administrative remedies, “the onus falls on the inmate to show that such remedies were unavailable to him.” Rinaldi v. United States, 904 F.3d 257, 268 (3d Cir. 2018).
With Hill's proposed added defendants and claims, it is mathematically certain that Hill did not resort to administrative remedies and metaphysically impossible for a remedy to have been unavailable to Hill or for Hill's access to a grievance system to have been obstructed. That is because no grievance can arise before the facts on which it is based occur, and the alleged events on which Hill bases his claims (other than against Vicklund) happened after he filed this action. There is nothing about the concept of establishing a failure to exhaust that requires the Court to waste time and resources by pretending that the impossible is in dispute. To illustrate the difference between unlikely (and therefore not susceptible to decision at the screening stage) and impossible, even if it is almost certain that Hill could not have exhausted his administrative remedies as to his claim against Vicklund in the nine days from the event to the filing of the complaint, Vicklund must plead lack of exhaustion as a defense.
And, not that it is necessary to rely on Rule 20, once again Rule 20 prohibits Hill from bundling together events that have only him as the common element by adding a conclusory assertion of a conspiracy (the unsuccessful pleading stratagem in Hill v. Wetzel, Case No. 2:19-cv-960) or the conclusory assertion of a pattern or practice in ¶83. It is worth observing that Hill never followed up in the two years after I expressly advised him in 2022 that Rule 20 did not prohibit him from filing separate complaints asserting post-January 14, 2021 claims. Nothing now prohibits Hill from filing separate complaints alleging his new post-January 14, 2021 claims. Hill is too experienced for his pleading stratagem in this case to be passed off as the innocent mistake of an inmate litigant. Hill is simply trying to litigate on the cheap, and that should not be countenanced.
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.” Granting further amendment is an inequitable waste of judicial resources.
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).