Opinion
Civil Action 2:22-cv-1665
12-22-2023
KAI D. INGRAM, Plaintiff, v. COUNSELOR SCHWAB, et al. Defendants.
Marilyn J. Horan Judge
REPORT AND RECOMMENDATION
PATRICIA L. DODGE UNITED STATES MAGISTRATE JUDGE
I. Recommendation
It is respectfully recommended that the Motion to Dismiss filed by Defendants Schwab and Wilson be granted.
II. Report
A. Relevant Procedural History
Plaintiff Kai D. Ingram, a prisoner in the custody of the Pennsylvania Department of Corrections (“DOC”), has filed this pro se civil rights action pursuant to 42 U.S.C. § 1983 against Counselor Schwab, Wilson, and unknown Doe defendants.He asserts violations of his rights under the First, Fourth and Fourteenth Amendments to the United States Constitution and seeks money damages.(ECF No. 8.)
While the Complaint references “Defendant Carpenter” in several places (ECF No. 8 at 4, 15), he/she is not named in the caption or in the list of defendants. Ingram named Deborah Carpenter as a defendant in an action he filed in this Court at Civil Action 22-62. In an Order issued by Judge Marilyn Horan on May 17, 2023, Carpenter was dismissed with prejudice from that action.
Ingram states that this action is based on violations of his rights under the First, Fourth, and Fourteenth Amendments. (ECF No. 8 at 3). However, his claims under the Fourth and Fourteenth Amendments are made in reference to “Defendant Carpenter” and with regard to his allegedly illegal detention. (Id. at 4). Ingram raises only a First Amendment violation against the moving defendants.
After service of the Complaint on Schwab and Wilson, they moved to dismiss the claims against them. (ECF No. 16). Their motion has been fully briefed, (ECF Nos. 17, 26), and is ripe for consideration. Notably, Ingram's 30-page response in opposition to Defendants' motion fails to address any of their arguments.
B. Legal Standards
A complaint requires only “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). Under Federal Rule of Civil Procedure 12(b)(6), a complaint may be dismissed, in whole or in part, for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). In deciding a Rule 12(b)(6) motion, the court must “accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief.” Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009) (quoting Phillips v. Cnty. of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008)). While “accepting] all of the complaint's well-pleaded facts as true,” the court “may disregard any legal conclusions.” Id. at 210-11. Further, in considering a motion to dismiss, the court generally considers only the allegations in the complaint, exhibits attached to the complaint, matters of public record, and documents that form the basis of a claim when considering the motion to dismiss. Lum v. Bank of Am., 361 F.3d 217, 222 n.3 (3d Cir. 2004) (citations omitted).
To survive a motion to dismiss, the plaintiff must plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “Though ‘detailed factual allegations' are not required, a complaint must do more than simply provide ‘labels and conclusions' or ‘a formulaic recitation of the elements of a cause of action.'” Davis v. Abington Mem'l Hosp., 765 F.3d 236, 241 (3d Cir. 2014) (quoting Twombly, 550 U.S. at 555). In sum, the plaintiff “must plead facts sufficient to show that her claim has substantive plausibility.” Johnson v. City of Shelby, Miss., 574 U.S. 10 (2014).
To assess the sufficiency of a complaint under Twombly and Iqbal, a court must take three steps: (1) outline the elements the plaintiff must plead to state a claim for relief; (2) peel away those allegations that are no more than conclusions and thus not entitled to the assumption of truth; (3) look for well-pled factual allegations, assume their veracity, and then determine whether they plausibly give rise to an entitlement to relief. Bistrian v. Levi, 696 F.3d 352, 365 (3d Cir. 2012). The court's plausibility determination is “a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Iqbal, 556 U.S. at 679.
The Court is not limited to the arguments presented in the motion to dismiss but may sua sponte consider the adequacy of the complaint pursuant to the screening provisions of the Prison Litigation Reform Act, Pub. L. No. 104-134, 110 Stat. 1321 (1996) (“PLRA”). See, e.g., Grayson v. Mayview State Hosp., 293 F.3d 103, 109 n.11 (3d Cir. 2022) (explaining that the PLRA's screening provisions at 28 U.S.C. § 1915(e)(2) and 42 U.S.C. § 1997e(c) are “applicable throughout the entire litigation process.”) (internal quotation and citation omitted); Banks v. County of Allegheny, 568 F.Supp.2d 579, 588-89 (W.D. Pa. 2008) (the court may sua sponte rest its dismissal upon a ground not raised in a motion to dismiss pursuant to the screening provisions of the PLRA).
Finally, “[a] document filed pro se is to be liberally construed and a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers[.]” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (internal citation and quotation marks omitted); see also Higgs v. Att'y Gen., 655 F.3d 333, 339 (3d Cir. 2011) (“The obligation to liberally construe a pro se litigant's pleadings is well-established.”). Additionally, the Court must “apply the relevant legal principle even when the complaint has failed to name it.” Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 244 (3d Cir. 2013). Nevertheless, “pro se litigants still must allege sufficient facts in their complaints to support a claim[,]” and “they cannot flout procedural rules— they must abide by the same rules that apply to all other litigants.” Id. at 245.
C. Factual Allegations in Complaint
Ingram is incarcerated at the State Correctional Institute at Greene for a parole violation. (ECF No. 8 at 5, 9). Believing his current incarceration to be illegal, Ingram previously filed two civil actions against the Pennsylvania Board of Probation and Parole (“Parole Board”) and multiple DOC employees. (Id.)
Ingram is referring to two civil actions he filed in this Court: Ingram v. SCI Smithfield, Case No. 2:21-cv-359, which was dismissed by this Court and affirmed by the United States Court of Appeals for the Third Circuit; and Ingram v. S. Davis, Case No. 2:22-cv-42, which is pending.
While the Complaint references events related to one or both of these lawsuits and Ingram's allegations of illegal detention, the claims against Schwab, Wilson and the John/Jane Does relate to events that are alleged to have occurred after the Parole Board denied him parole on May 10, 2022. (Id. at 6). A month before Ingram was to go before the Parole Board again in November, 2022, Schwab called him into his office and informed Ingram that he had “two programs to complete.” (Id. at 7). These programs were recommended by Schwab and Wilson. (Id.) Ingram asserts before this conversation, he had never received notice of any recommended programming since he was first incarcerated at SCI Greene in June 2021. (Id.)
Ingram claims that in retaliation for his prior lawsuits, Schwab and Wilson took this action so that his parole would be denied. On November 22, 2022, the Parole Board denied him parole due to his failure to complete these programs. (Id.)
Defendants submitted with their Brief (ECF No. 17) the Notice of Board Decision that reflects the denial of Ingram's parole on November 28, 2022. (ECF No. 17-2). One of the identified bases for the Parole Board's decision is “your need to participate in and complete additional institutional programs.” (Id. at 1). Another factor identified was “your prior unsatisfactory supervision history.” (Id.) Defendants also submitted the May 2022 Notice of Board Decision. (ECF No. 17-1). Because these Notices were issued by an adjudicating body, the Court may take judicial notice of them. See, e.g., Fed.R.Evid. 201(b)(2); Burgess v. Cerilli, 2019 WL 2298788, at *4 (W.D. Pa. May 30, 2019) (“In addition to the complaint, courts may consider matters of public record and other matters of which a court may take judicial notice, court orders, and exhibits attached to the complaint when adjudicating a motion to dismiss under Rule 12(b)(6).”); Davis v. Cotov, 214 F.Supp.2d 310, 315 (E.D.N.Y. 2002) (district court took judicial of an administrative appeal decision notice issued by state parole board.)
D. Discussion
1. Sovereign Immunity
Ingram has asserted claims against Schwab and Wilson in both their official and individual capacities. In their Motion to Dismiss, Schwab and Wilson assert that they have sovereign immunity with respect to claims against them in their official capacities. (ECF No. 17 at 4-5). They are correct. The Eleventh Amendment to the United States Constitution proscribes actions for damages in the federal courts against states, their agencies, and state officials acting within their official capacities. Kentucky v. Graham, 473 U.S. 159, 165-67 (1985). “Because the Pennsylvania DOC is a part of the executive department of the Commonwealth of Pennsylvania, its employees share in the Commonwealth's Eleventh Amendment immunity to the extent that they were sued in their official capacities.” Johnson v. Wenerowicz, 440 Fed.Appx. 60, 62 (3d Cir. 2011). Thus, because Schwab and Wilson are employees of the DOC, any claims against them in their official capacities are barred by the immunity afforded to the Commonwealth of Pennsylvania by the Eleventh Amendment.
Further, claims against Schwab and Wilson in their official capacities are actually claims against the Commonwealth of Pennsylvania, and the Commonwealth is not a person that can be sued under 42 U.S.C.§ 1983, even if the Eleventh Amendment permitted this Court to exercise jurisdiction over the claims. Hafer v. Melo, 502 U.S. 21, 25-26 (1991).
Accordingly, the claims against Schwab and Wilson in their official capacities should be dismissed with prejudice.
2. Retaliation Claim
Ingram claims that one month before he was scheduled to go before the Parole Board, Schwab and Wilson improperly retaliated against him for filing civil actions against DOC employees by recommending programs that Ingram needed to complete. According to Ingram, because he had not completed these programs before his parole hearing, his parole was denied.
To succeed on a claim for retaliation under the First Amendment, a plaintiff must show “(1) constitutionally protected conduct, (2) retaliatory action sufficient to deter a person of ordinary firmness from exercising his constitutional rights, and (3) a causal link between the constitutionally protected conduct and the retaliatory action.” Thomas v. Indep. Twp., 463 F.3d 285, 296 (3d Cir. 2006) (citing Mitchell v. Horn, 318 F.3d 523, 530 (3d Cir. 2003)).
Schwab and Wilson argue that Ingram failed to allege sufficient facts to establish the first and third elements of a retaliation claim. (ECF No. 17 at 6-9). They assert that Ingram failed to specifically identify the constitutionally protected conduct in which he engaged and any causal connection between such conduct and their recommendation of programming. (Id. at 6-8).
In his 30-page Response to Defendants' Motion to Dismiss, Ingram includes a brief recitation of the facts alleged in the Complaint concerning Schwab and Wilson's recommendation of programming in October of 2022 (ECF No. 26 at 11-12) but fails to provide any response to the moving defendants' arguments. Instead, he discusses at length various parties and events unrelated to this case, principally criticizing the Parole Board's historical denials of parole. Because Ingram failed to defend his claims, they may be dismissed as unopposed. See Massey v. Holman, 2019 WL 3997845, at *6 (W.D. Pa. July 23, 2019) (collecting cases).
With respect to the issue of a constitutionally protected activity, both of Ingram's prior lawsuits were commenced before the alleged retaliation by Schwab and Wilson. Thus, solely for the purposes of resolving Defendants' Motion to Dismiss, the Court concludes that this is protected activity. See Mearin v. Vidonish, 450 Fed.Appx. 100, 102 (3d Cir. 2015) (holding that the filing of lawsuits against prison officials constitutes constitutionally protected activity).
Defendants also assert that Ingram failed to establish the required causal link between the protected activity and the alleged retaliatory action. A plaintiff may establish the causal connection necessary for a First Amendment retaliation claim by showing “(1) an unusually suggestive temporal proximity between the protected activity and the alleged retaliatory action, or (2) a pattern of antagonism coupled with timing to establish a causal link.” Lauren W. ex rel. Jean W. v. DeFlaminis, 480 F.3d 259, 267 (3d Cir. 2007). Neither are satisfied here.
First, as the moving defendants correctly state, Ingram has not shown temporal proximity between his constitutionally protected conduct and their actions in October of 2022. Both of Ingram's civil actions were filed well prior to the alleged program recommendations. Ingram v. SCI Smithfield, Case No. 2:21-cv-359, was initiated on March 18, 2021. Ingram v. S. Davis, Case No. 2:22-cv-42, was initiated on January 7, 2022. Moreover, as relevant here, Ingram's parole was denied in May 2022, approximately five months before his meeting with Schwab. Neither defendant is alleged to have had any role in the decision of the Parole Board, nor does Ingram allege that the issue of completing programming came up in connection with the May 2022 proceeding.
Further, Ingram has not shown a pattern of antagonism directed to him from these defendants, nor has he made any factual allegations from which this Court could infer a retaliatory motive. Ingram does not plead that either defendant was aware of his prior lawsuits, nor does he allege, or even suggest, that they had some animus towards him. Simply put, they merely required him to complete certain programming. Significantly, Ingram does not allege that the recommended programming was unnecessary or not appropriate for Ingram's needs. Indeed, if Ingram's allegations were found to be sufficient to show a causal connection in this instance, they would be sufficient to show a causal connection between every action taken by a DOC employee in the months and years subsequent to a prisoner filing a lawsuit against any other DOC employee. That result would be untenable.
For these reasons, the Motion to Dismiss should be granted.
E. 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, 293 F.3d at 108.
Because Ingram had notice of and an opportunity to respond to the arguments made in the Motion to Dismiss but failed to do so, it would be inequitable and/or futile to grant him leave to amend his Complaint. See Robinson v. Sobina, 2011 WL 6056894, at *9 (W.D. Pa. Dec. 6, 2011) (dismissing claims without leave to amend because plaintiff failed to respond to defendant's arguments against claims) (citing Arango v. Winstead, 352 Fed.Appx. 664, 666 (3d Cir. 2009)).
F. Conclusion
For these reasons, it is respectfully recommended that the Court grant the Motion to Dismiss filed by Defendants Schwab and Wilson, ECF No. 16, without leave to amend.
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).