Opinion
3:21-cv-8-SLH-KAP
09-01-2021
LAVOND A. HILL, Plaintiff, v. JOHN E. WETZEL, et al. Defendants
REPORT AND RECOMMENDATION
Keith A. Pesto, United States Magistrate Judge
Recommendation
The complaint should be dismissed with leave to amend. The motions for preliminary injunction and/or temporary restraining should be denied.
Report
Since plaintiff is proceeding in forma pauperis, 28 U.S.C.§ 1915(e)(2) commands:
(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.
Also applicable to this case is 28 U.S.C.§ 1915A, which commands that:
(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.
In his complaint, plaintiff alleges the following. Plaintiff is an inmate at the State Correctional Institution at Houtzdale (“S.C.I. Houtzdale”). ECF no. 5 ¶ 5. He was transferred to S.C.I. Houtzdale on June 4, 2020. Id. ¶ 15. Upon his arrival, defendants Probursky and Jones scanned plaintiff's body and then placed him in a “hard cell” without bedding, soap, legal material, water shoes or access to the exercise yard. Id. ¶ 16. He remained in this situation until August 21, 2020. Id. ¶ 17.
On August 21, 2020, plaintiff was stripped naked by defendants Probursky, Miller, Lewis and Miller and placed in a freezing cell without clothing, personal property, bedding, or water. Id. ¶ 18.
On October 16, 2020, plaintiff filed a Section 1983 action in the Court of Common Pleas of Clearfield County. Id. ¶ 19.
Defendants Jones, Probursky, Lewis, Moyer, Hunt, Deloretta and Riddle falsified misconduct reports against plaintiff, resulting in him being placed on institutional “709” restriction and being left naked in an empty hard cell. Id. ¶ 20. When plaintiff managed to fill out institutional request slips to defendants Smith, Salamon, Close and Jones, requesting the return of his bedding, clothing, soap and water, these defendants refused his requests. Id.
There is no defendant named Riddle. The named defendants are John E. Wetzel, Berry Smith, Bobbi J. Salamon, D. Close, J. Jones, Lewis, Probursky, Gondek, Hunt, N.J. Moyer, Deloretta, Vicklund and J. James.
Smith, Probursky, Lewis, Close, Jones, Salamon and Moyer were ordered by the “Central Office” that they cannot add their own behaviors to the 709 form. Id. ¶ 21.
The exhibit referenced in this paragraph of the Complaint is a Final Appeal Decision from the Secretary's Office of Inmate Grievances & Appeals in which it is stated that “staff have been reminded that they cannot add their own ‘Behaviors' to the DC-709 form.” ECF no. 5-3 at 1. However, this document concerns a grievance filed by another inmate, not plaintiff. Further, none of the defendants are referenced in the document. Its relevance, therefore, is not evident.
On January 5, 2021, Probursky approached plaintiff in his cell and threatened to take plaintiff's personal property and leave him in the cell naked. Id. ¶ 22. Plaintiff did not respond. Id. Probursky called plaintiff a “nigger” and then left. Id. Probursky later returned and said to plaintiff, “hey dick sucker we've taken your property.” Id. ¶ 23. Plaintiff did not respond. Id.
Subsequently, defendants Probursky, Moyer, Vicklund, Deloretta, Robinson, Wisor, and Smith approached plaintiff in his cell. Id. ¶ 24. Probursky ordered plaintiff to be cuffed; plaintiff complied. Id. ¶ 25. Probursky, Robinson, Moyer and Vicklund began to violently pull on the tether attached to plaintiff's cuff, which caused plaintiff's right wrist/elbow to pop. Id. ¶ 26. Plaintiff was violently removed from his cell by Probursky, Robinson, Moyer, Vicklund and Deloretta. Id. ¶ 27. Deloretta, Moyer, Smith and Wisor confiscated plaintiff's personal property and bedding. Id. Plaintiff requested medical attention and was seen by a nurse with cuffs tight around his wrist. Id. ¶ 28. He was placed back in his cell without his personal property, bedding, law books, mail, soap, toothbrush, toothpaste, and photographs. Id. ¶ 29. After that incident, plaintiff was prohibited from showering and attending the exercise yard. Id. ¶ 30.
There is no defendant named Robinson.
There is no defendant named Wisor.
On January 6, 2021, Probursky walked past plaintiff's cell and said, “You won't file anything against us.” Id. ¶ 31.
On January 7, 2021, a prison official gave plaintiff privileged mail from the Court of Common Pleas of Clearfield County containing a final order. Id. ¶ 32. The prison official, Peacock, told plaintiff he was “not part of Prob[u]rsky and Smith's game.” Id. Plaintiff cannot appeal the Common Pleas order because Smith, Probursky, Salamon, Close, James, Jones, Moyer, Deloretta, Vicklund and Reifer will not provide him with his personal property, privileged mail, and non-privileged mail. Id. ¶ 33.
On January 11, 2020, other prisoners gave plaintiff paper and pen to write to this Court. Id. ¶ 34.
As of the date of the complaint, plaintiff's personal property had not been returned and he had not been provided with medical treatment for his wrist/elbow. Id. ¶ 35. He sustained cuts on his wrist and elbow and suffers from severe back and neck pain. Id. ¶ 43.
Plaintiff lists multiple claims without attaching them to any specific party or fact. Against all defendants, he asserts against claims of retaliation, cruel and unusual punishment, harassment, loss/damage/destruction of property, negligence, assault and battery, denial of access to courts and deliberate indifference. Id. ¶ 36. He asserts that defendants Wetzel, Smith, Salamon, James, Close, Jones, Lewis, Probursky and Woomerhave personal knowledge of and acquiescence to the misconduct of their subordinates. Id. ¶ 40. He further asserts that defendants Wetzel, Smith, Salamon, Close and James failed to properly train their subordinates. Id. ¶ 41. He finally asserts that Wetzel is the sole policy maker for the Pennsylvania Department of Corrections. Id. ¶ 42.
There is no defendant named Woomer.
While the Court will liberally construe the filings of a pro se litigant, the Court is not required to guess which of 13 defendants is being sued for which of eight claims supported by which of many alleged facts, some of which are attached to no named defendant and some of which allege conduct which fails to rise to the level of any actionable violation. Because the complaint fails to state any claim against any defendant in compliance with Rule 8, it should be dismissed.
However, 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.” The Court cannot say that it would be futile or inequitable to permit plaintiff to file an amended complaint in which he sets forth the involvement of each defendant in each claim.
Plaintiff has also filed two motions for preliminary injunction and/or temporary restraining order, ECF nos. 6 and 8. In these motions, plaintiff reiterates grievances set forth in the complaint and also adds new ones, such as the broken window in his new cell, see ECF no. 8 at 2-3.
To obtain preliminary relief under Fed.R.Civ.P. 65, the moving party must show, before any balance of harms or public interest is considered, both a reasonable likelihood of ultimately prevailing on the merits, and the need for immediate relief to avoid irreparable injury. Hope v. Warden York County Prison, 972 F.3d 310, 319 (3d Cir. 2020). This has been settled law for at least half a century. See Allis-Chalmers Manufacturing Co. v. White Consolidated Industries, Inc., 414 F.2d 506, 511 (3d Cir.1969). As set forth above, plaintiff does not at this point state any plausible federal claim. He therefore has not established a reasonable likelihood of ultimately prevailing on the merits, and for this reason alone the motions for preliminary relief should be denied.
Additionally, the PLRA imposes stringent conditions on the award of preliminary injunctive relief, see 18 U.S.C.§ 3626(a)(1), (2). The vagueness of the relief requested by plaintiff - an order “to stop harassing plaintiff” - is itself sufficient reason to deny the motion at ECF no. 8.
Pursuant to 28 U.S.C.§ 636(b)(1), plaintiff can within fourteen days file written objections to this Report and Recommendation. Plaintiff is 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). Plaintiff is also given leave to amend his complaint within the same time. Plaintiff can, if he wants, both amend his complaint and file objections.