Opinion
Civil Action 2:22-cv-1264
10-05-2023
WILLIAM HOWARD HOUSMAN, Plaintiff, v. SMART COMMUNICATION, GEORGE LITTLE, MS. KOIS, MS. ANDREETTI; MICHAEL ZAKEN, and KERI MOORE, Defendants.
REPORT AND RECOMMENDATION
PATRICIA L. DODGE, UNITED STATES MAGISTRATE JUDGE
I. Recommendation
It is respectfully recommended that the Amended Complaint filed by Plaintiff William Howard Housman against George Little, Ms. Kois, Ms. Andreetti, Michael Zaken, Keri Moore, and Smart Communication be dismissed with prejudice.
II. Report
A. Relevant Procedural History
Housman, a prisoner in the custody of the Pennsylvania Department of Corrections (“DOC”) at the State Correctional Institution at Greene, filed a pro se civil rights Complaint under 42 U.S.C. § 1983. ECF No. 4. In that Complaint, he asserted that his procedural due process rights under the Fourteenth Amendment to the United States Constitution were violated when items of mail sent to him were rejected without notice to him.
On January 9, 2023, defendants Little, Kois, Andreetti, Zaken, Moore (“the Corrections Defendants”) filed a Motion to Dismiss Housman's claims against them. ECF No. 18. This Court filed a Report and Recommendation recommending that the Motion to Dismiss be granted and that the claim against Smart Communication be dismissed.ECF No. 30. No objections were filed to the Report and Recommendation. On July 12, 2023, the District Judge adopted the Report and Recommendation and ordered the Complaint dismissed. ECF No. 31. The dismissal was with prejudice as to the claims against the Corrections Defendants in their official capacities but without prejudice and with leave to amend as to all other claims. Id.
While Smart Communication was not and has not been served with a complaint in this action, the Court may consider the adequacy of Housman's claim against Smart Communication pursuant to the screening provisions of the Prison Litigation Reform Act, Pub. L. No. 104-134, 110 Stat. 1321 (1996).
Housman has now filed an Amended Complaint, ECF No. 41, in which he unsuccessfully attempts to remedy the deficiencies of the original Complaint.
B. Analysis
Housman's original Complaint was dismissed on the following two general bases, as more thoroughly discussed in the previous Report and Recommendation: (1) insufficient allegations of personal involvement in the claimed constitutional violation, warranting dismissal against some defendants; and (2) insufficient allegations to state a due process claim regarding the alleged deprivation of a liberty interest, warranting dismissal against all defendants.
As to the lack of personal involvement, this Court found that the allegations against Zaken, Moore, and Andreetti concerned only their post-event participation in the grievance process and thus were insufficient to show their personal involvement; further, this Court found that there were no allegations regarding any personal involvement by Little. ECF No. 30 at 6 (citing, inter alia, Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988) (holding that in order to assert a claim against a defendant in a civil rights action pursuant to 42 U.S.C.§ 1983, a plaintiff must allege that the defendant had “personal involvement in the alleged wrongs; liability cannot be predicated solely on the operation of respondeat superior”); and Brooks v. Beard, 167 Fed.Appx. 923, 925 (3d Cir. 2006) (allegations that prison officials and administrators responded inappropriately to inmate's later-filed grievances do not establish the involvement of those officials and administrators in the underlying deprivation)).
In the Amended Complaint, Housman does not allege additional facts to show the personal involvement of Zaken, Moore, Andreetti, or Little. He alleges only generally that these defendants were duty-bound to prevent violations of policy from taking place and that they failed to do so. ECF No. 41 ¶¶ 12, 14, 15, 16. As to specific allegations of personal involvement, Housman makes none concerning Little. With respect to Zaken, Moore, and Andreetti, Housman alleges only their post-event participation in the grievance process. Id. These allegations were insufficient in the original Complaint and are insufficient in the Amended Complaint. As such, the claims against these defendants should be dismissed on this basis.
As to the failure to state a due process claim, this Court found that Housman plausibly alleged that he was deprived of a liberty interest but did not allege that the state failed to provide due process regarding the alleged deprivation. Further, Housman did not specifically address the adequacy of the grievance process as a post-deprivation remedy. ECF No. 30 at 9-12 (citing, inter alia, Zinermon v. Burch, 494 U.S. 113, 125-26 (1990) (“In procedural due process claims, the deprivation by state action of a constitutionally protected interest in ‘life, liberty, or property' is not in itself unconstitutional; what is unconstitutional is the deprivation of such an interest without due process of law”); and Tillman v. Lebanon Cnty. Corr. Facility, 221 F.3d 410, 421 (3d Cir. 2000) (finding the state prison grievance system to be an adequate post-deprivation remedy for deprivations involving “routine matters” with “low risk of error.”)). Thus, the Complaint, including the claims against the remaining defendants, Kois and Smart Communication, was dismissed on this basis. As to Smart Communication, this Court specially advised Housman that if he elected to file an amended complaint naming Smart Communication as a defendant, he had to allege a factual basis to show that a Smart Communication policy caused a violation of his constitutional rights in order for his claim against it to survive.
In the Amended Complaint, Housman makes no effort to correct these identified deficiencies. He does not allege the existence of a Smart Communication policy that caused the violation of his rights. Further, although he again cites to, and attaches, the documents from the litigation of his grievances, he does not assert the insufficiency of the grievance process or otherwise address a lack of due process provided to him. In his Amended Complaint, as in his original Complaint, Housman sets forth only part of a due process claim: the deprivation of a liberty interest. His claim fails because he does not allege sufficient facts to support a plausible claim that the state failed to provide him with due process regarding the deprivation.
On this basis, the Amended Complaint should be dismissed in its entirety.
C. Amendment
The Third Circuit has instructed that if a civil rights complaint is vulnerable to dismissal for failure to state a claim, the Court should permit a curative amendment, unless an amendment would be inequitable or futile. Mullin v. Balicki, 875 F.3d 140, 151 (3d Cir. 2017); Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002).
Because Housman was advised as to the nature of the deficiencies in his pleading, has had an opportunity to remedy these deficiencies, and was unable to do so, it would be both inequitable and futile to permit further amendment.
D. Conclusion
For all of these reasons, it is respectfully recommended that the Court dismiss the Amended Complaint with prejudice.
Pursuant to the Magistrate Judges Act, 28 U.S.C. § 636(b)(1)(B) and (C), and Rule 72.D.2 of the Local Civil Rules, the parties may, within fourteen (14) days, file objections to this Report and Recommendation. Failure to do so will waive the right to appeal. Brightwell v. Lehman, 637 F.3d 187, 193 n.7 (3d Cir. 2011).