Opinion
Civil Action No. 19-397
07-14-2020
MARCELLUS JONES, Plaintiff, v. ROBERT GILLMORE; ZAKEN; DIALESANDRO; SOKOL; TRACEY SHAWLEY; LEGGETT; CARO; WILLIAM NICHOLSON; STEPHANIE WOOD; DENISE SMITH; JAMES BRESHAHN; LORI RIDINGS; AUSTIN; CHAMBERS; PAMELA LNU; KELLIE GETTY; TATE; JOHNSON; RAMIREZ; JON DOE; ADAMSON; HECHECAVARA in their individual capacities, Defendants.
District JudgeRobert J. Colville
Re: ECF Nos. 17, 30 and 40 REPORT AND RECOMMENDATION
I. RECOMMENDATION
Plaintiff Marcellus Jones brings this pro se civil rights action against twenty-two medical providers, corrections staff and supervisory personnel employed by or assigned to the Pennsylvania State Correctional Institution at Greene ("SCI-Greene"). In the operative Amended Complaint, Plaintiff alleges that each of these individuals violated or conspired to violate his rights under the First, Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution and committed various additional violations of Pennsylvania statutory and common law. ECF No. 8.
Pending before the Court are the Corrections Defendants' Partial Motion to Dismiss, filed on behalf of Defendants Adamson, Caro, DiAlesandro, Getty, Gilmore, Hechavarria, Leggett, Nicholson, Ramirez, Shawley, Sokol, Tate, Wood and Zaken (collectively, the "DOC Defendants"), ECF No. 17, and the Motion for Partial Dismissal of Plaintiff's Amended Complaint filed on behalf of Defendants Ridings, Austin, Daniel and Bresnahan (the "Medical Defendants"), ECF Nos. 30 and 35.,
In this Report and Recommendation, the Court adopts the correct spelling of each Defendant's name as well as the name of Defendant "Denise Smyth," identified by the Medical Defendants as "Denise Daniel, M.D."
By Order dated May 7, 2020, the Court granted Defendant James Bresnahan's Motion for Joinder as the Partial Motion to Dismiss filed by the Medical Defendants. ECF No. 37. Defendants Chambers, Pamela and Johnson have not yet responded to the Amended Complaint and the docket does not reflect that these Defendants have been served.
For the following reasons, it is respectfully recommended that the Partial Motion to Dismiss filed on behalf of the DOC Defendants be granted and that the Partial Motion to Dismiss filed on behalf of the Medical Defendants be granted in part and denied in part.
II. REPORT
A. FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff commenced this action by submitting a Complaint on April 9, 2019. ECF No. 1. The Court issued a deficiency order because Plaintiff failed to pay the applicable filing fee or petition the Court to proceed in forma pauperis ("IFP"). ECF No. 2. Six months later, Plaintiff filed his IFP petition and supporting documentation, but failed to provide necessary service copies in compliance with the initial deficiency order. The Complaint was docketed, ECF No. 6, and Plaintiff later filed the operative Amended Complaint, ECF No. 8. On December 2, 2019, Plaintiff corrected the remaining deficiencies and the Court ordered service of the Amended Complaint. ECF No. 9.
Through his Amended Complaint, Plaintiff alleges claims arising out of unrelated incidents that occurred during his incarceration at SCI-Greene. At this early stage of the litigation, the Court accepts as true the factual allegations set forth in the Amended Complaint. Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009) ("[t]he District Court must accept all of the complaint's well-pleaded facts as true.")
Plaintiff alleges that on March 21, 2017, he was physically and sexually assaulted in a transport van by Defendants Adamson, Hechavarria, Doe and Ramirez. Immediately following the incident, Plaintiff reported his injuries to Nurse Johnson, who allegedly failed to treat him. ECF No. 8 ¶¶ 54-58.
Plaintiff commenced this action more than two years after the accrual of his March 21, 2017 assault and deliberate indifference claims. At this early stage of the litigation, the parties have not addressed whether Plaintiff exhausted available administrative remedies to toll the applicable statute of limitations as to these discrete claims. See, e.g., Pearson v. Sec'y Dep't of Corr., 775 F.3d 598, 604 (3d Cir. 2015).
On July 8, 2017, Plaintiff was rendered unconscious in his cell due to low glucose levels. Nurse Tate and unidentified corrections staff allegedly observed him in this condition for several hours but failed to provide necessary medical treatment. Later that evening, other unidentified corrections officers and medical staff revived Plaintiff and hospitalized him for treatment. Plaintiff contends that Tate failed to provide medical treatment due to a conspiracy with Daniel to retaliate against Plaintiff for submitting complaints, grievances and requests for assistance to prison authorities concerning inadequate medical care. Plaintiff also alleges that Daniel and Tate have falsified his medical records. Id. ¶¶ 29-34.
Plaintiff next claims that he suffered food deprivation because unidentified prison personnel tampered with his meals. Id. ¶ 35. On August 28, 2017, Plaintiff filed a "Petition to Show Cause for Writ of Habeas Corpus" in the Court of Common Pleas of Greene County seeking immediate assistance with this alleged abusive behavior. The assigned judge contacted Defendant Wood, SCI-Greene's health care administrator, to confirm Plaintiff's well-being. Wood represented that Plaintiff was well, eating and drinking, and remained housed in his usual cell. Wood also explained DOC's procedures that are initiated for inmate care and safety when an inmate refuses to eat for several days. Based on these representations, the state court denied Plaintiff's request for injunctive relief and directed him to pay the appropriate fees necessary to initiate a civil action. Id. ¶¶ 35-38; ECF No. 8-4. Plaintiff alleges that Wood misrepresented his health to advance ongoing retaliation by medical personnel and to sabotage his state court legal proceedings. Id.
Plaintiff claims that because of excruciating abdominal pain, he was seen on October 25, 2017 by Defendant Bresnahan, a physician's assistant. Bresnahan ordered an abdominal scan but failed to ensure it was conducted. As a result, Plaintiff remained untreated and continued to suffer severe pain. On November 7, 2017, Bresnahan said he would schedule a sonogram to determine the cause of the pain, but again failed to do so. Plaintiff's pain continued and on November 15, 2017, Defendant Ridding, a physician's assistant, examined Plaintiff and said she would schedule a sonogram. The sonogram was not scheduled and three days later, Daniel informed Plaintiff that no matter how many complaints he submitted regarding pain, "no ultrasound will be given to you on our watch." Id. ¶¶ 39-42.
Over the next month, Plaintiff states that he passed out three times as a result of the pain, but remained untreated until December 29, 2017, when Plaintiff was hospitalized for the surgical removal of a foreign object and to treat an abdominal abscess. Id., and see, ECF No. 8-5. Plaintiff states that beginning March 2017 through February 2018, he continued to experience pain and complained to Defendants Riddings, Sandra, Bresnahan, Nurse Pamela, Getty, Tate and Chambers, as well as to prison administrators Zaken, DiAlessandro, Sokol, Leggett and Caro, through personal conversations and in the form of grievances to Shawley and Gillmore, all to no avail. Id. ¶¶ 43-53.
Based on the alleged violation of his rights, Plaintiff filed this action and seeks an award of declaratory relief as well as compensatory and punitive damages.
The DOC Defendants filed a Partial Motion to Dismiss Plaintiff's Amended Complaint. Plaintiff was granted an extension of time from the original due date of March 12, 2020, until May 1, 2020, to respond. ECF Nos. 17, 26, 27. On March 30, 2020, the Medical Defendants filed a Partial Motion to Dismiss, ECF No. 30, and the Court ordered Plaintiff to respond on or before April 30, 2020. ECF No. 32.
Plaintiff filed a "Declaration/Emergency Notice" claiming that his legal papers were stolen by personnel at SCI-Smithfield. ECF No. 33. The Court ordered the DOC Defendants to file a response to Plaintiff's allegations. ECF No. 34. Bradley Fisher, the Unit Manager for Plaintiff's Behavioral Management Unit ("BMU"), provided an Affidavit explaining that on April 22, 2020 Plaintiff assaulted a staff member and was housed in an "[a]ccountability cell" with restricted access to his property. ECF No. 38-1. Id. On April 29, 2020, Plaintiff was released from the accountability cell, but refused to leave. Since that time, unit staff have offered Plaintiff several opportunities to return to his usual cell, but he continues to refuse. The DOC Defendants represent that Plaintiff is allowed one box of legal materials in his cell and he has been invited to visit the property room to exchange legal documents. Id.
Plaintiff filed a "Petition for Temporary Restraining Order & Injunctive Relief," dated May 4, 2020. ECF No. 40. Plaintiff reiterated his contention that he lacks access to his legal property and is unable to formulate a response to the pending Motions to Dismiss. The DOC Defendants responded, noting that Plaintiff's second filing predates their response, and again confirmed Plaintiff's access to his legal property. ECF No. 44. Plaintiff evidently disputes these assertions, and requested leave to file a reply. The Court granted Plaintiff's motion. Despite his assertions regarding interference with litigation, on June 10, 2020, Plaintiff filed a "Motion in Opposition to Defendants['] Motion to Dismiss," and his Brief in Opposition to Defendants['] Motion to Dismiss. ECF Nos. 45, 46. In addition, on July 6, 2020, Plaintiff filed a second motion for a preliminary injunction and temporary restraining order to gain access to legal property related to four other cases Plaintiff currently is litigating. ECF No. 50. Through this motion, he contends that SCI-Smithfield officials refuse to permit him to store additional boxes of legal property in his cell, have destroyed documents in retaliation for pending litigation, and have impeded his ability to exchange legal property. ECF No. 51. Plaintiff seeks relief in the form of an order requiring SCI-Smithfield to permit Plaintiff to store all legal property related to this action in his cell, without limit or interference. ECF No. 50-1.
Given Plaintiff's comprehensive brief in opposition to the pending motions to dismiss, ECF No. 46, Defendants' partial motions to dismiss are ripe for disposition, as is Plaintiff's initial motion for injunctive relief, ECF No. 40. Resolution of Plaintiff's second motion for injunctive relief, ECF No. 50, is deferred pending Defendants' response.
B. STANDARD OF REVIEW
1. Motion to Dismiss
A complaint must be dismissed under Federal Rule of Civil Procedure 12(b)(6) if it does not allege "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). The plaintiff must allege "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 (2009).
"Though a complaint 'does not need detailed factual allegations, ... a formulaic recitation of the elements of a cause of action will not do.'" DelRio-Mocci v. Connolly Prop. Inc., 672 F.3d 241, 245 (3d Cir. 2012) (citing Twombly, 550 U.S. at 555). In other words, "[f]actual allegations must be enough to raise a right to relief above the speculative level." Covington v. Int'l Ass'n of Approved Basketball Officials, 710 F.3d 114, 118 (3d Cir. 2013) (internal citations and quotation marks omitted). A court "take[s] as true all the factual allegations in the Complaint and the reasonable inferences that can be drawn from those facts, but ... disregard[s] legal conclusions and threadbare recitals of the elements of a cause of action, supported by mere conclusory statements." Ethypharm S.A. France v. Abbott Laboratories, 707 F.3d 223, 231, n.14 (3d Cir. 2013) (internal citations and quotation marks omitted).
Twombly and Iqbal require [a district court] to take the following three steps to determine the sufficiency of a complaint: First, the court must take note of the elements a plaintiff must plead to state a claim. Second, the court should identify allegations that, because they are no more than conclusions, are not entitled to the assumption of truth. Finally, where there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement for relief.Connelly v. Steel Valley Sch. Dist., 706 F.3d 209, 212 (3d Cir. 2013).
"[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged - but it has not show[n] - that the pleader is entitled to relief." Iqbal, 556 U.S. at 679 (internal citations and quotation marks omitted). This "plausibility" determination will be a "context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id.
2. Pro Se Pleadings
The court must hold pro se pleadings, "however inartfully pleaded," to "less stringent standards than formal pleadings drafted by lawyers." Haines v. Kerner, 404 U.S. 519, 520-521 (1972). If the court can reasonably read pleadings to state a valid claim on which the litigant could prevail, it should do so despite failure to cite proper legal authority, confusion of legal theories, poor syntax and sentence construction, or litigant's unfamiliarity with pleading requirements. Boag v. MacDougall, 454 U.S. 364 (1982); U.S. ex rel. Montgomery v. Brierley, 414 F.2d 552, 555 (3d Cir. 1969) (petition prepared by a prisoner may be inartfully drawn and should be read "with a measure of tolerance"). Under our liberal pleading rules, during the initial stages of litigation, a district court should construe all allegations in a complaint in favor of the complainant. See, e.g., Nami v. Fauver, 82 F.3d 63, 65 (3d Cir. 1996) (discussing Fed. R. Civ. P. 12(b)(6) standard). Because Plaintiff is a pro se litigant, this Court will consider facts and make inferences where appropriate.
C. DISCUSSION
1. Partial Motion to Dismiss of DOC Defendants
a. Retaliation
The DOC Defendants move to dismiss Plaintiff's retaliation claim against all identified DOC Defendants based on the lack of allegations establishing their personal involvement in the alleged misconduct.
To state a prima facie case of First Amendment retaliation, a prisoner must plausibly allege that: (1) he engaged in constitutionally protected conduct; (2) he suffered an adverse action sufficient to deter a person of ordinary firmness from exercising his constitutional rights; and (3) the constitutionally protected conduct was "a substantial or motivating factor" for the adverse action. Rauser v. Horn, 241 F.3d 330, 333 (3d Cir. 2001). If the prisoner establishes a prima facie case of retaliation, the burden then shifts to the prison officials to show that their action would have been the same, even without protected activity. Id. at 334. If prison officials can make this showing, it defeats the retaliation claim. Carter v. McGrady, 292 F.3d 152, 159 (3d Cir. 2002).
When pursuing a retaliation claim under Section 1983, a plaintiff must also allege facts that plausibly show that each named defendant, acting under color of state law, deprived him of a right secured by the Constitution or laws of the United States. 42 U.S.C. § 1983. "A defendant in a civil rights action 'must have personal involvement in the alleged wrongs to be liable,' and 'cannot be held responsible for a constitutional violation which he or she neither participated in nor approved.'" Baraka v. McGreevey, 481 F.3d 187, 210 (3d Cir. 2007) (internal citations omitted). "Personal involvement can be shown through allegations of personal direction or of actual knowledge and acquiescence. Allegations of participation or actual knowledge and acquiescence, however, must be made with appropriate particularity." Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988). An allegation seeking to impose liability on a defendant based on supervisory status, without more, will not subject the official to Section 1983 liability.
Plaintiff alleges retaliation solely against Medical Defendants Tate, Daniel, and other unidentified medical personal. See ECF No. 8 ¶¶ 29-34, 42, 61. Without facts plausibly establishing that any DOC Defendant participated in or knowingly acquiesced in alleged retaliation, Plaintiff fails to state a claim upon which relief can be granted as to these defendants. Accordingly, it is recommended that the Court grant the DOC Defendants' Partial Motion to Dismiss as to Plaintiff's First Amendment retaliation claim.
b. Conspiracy
The DOC Defendants next move to dismiss Plaintiff's conspiracy claim against each of them. To state a cognizable conspiracy claim, a plaintiff cannot rely on broad or conclusory allegations. D.R. by L.R. v. Middle Bucks Area Vocational Technical Sch., 972 F.2d 1364, 1377 (3d Cir. 1992) cert. denied, 506 U.S. 1079 (1993); Rose v. Bartle, 871 F.2d 331, 366 (3d Cir. 1989). "To plead conspiracy adequately, a plaintiff must set forth allegations that address the period of the conspiracy, the object of the conspiracy, and the certain actions of the alleged conspirators taken to achieve that purpose." Shearin v. E.F. Hutton Group, Inc., 885 F.2d 1162, 1166 (3d Cir. 1989) abrogated on other grounds by Beck v. Prupis, 529 U.S. 494 (2000). A plaintiff therefore must allege facts from which a court may conclude that the purported conspirators agreed or plotted, planned and conspired together to deprive plaintiff of a protected federal right. D.R. by L.R., 972 F.2d at 1377; Rose, 871 F.2d at 366; Lewis v. Wetzel, 153 F. Supp. 3d 678, 695 (M.D. Pa. 2015). "Where a civil rights conspiracy is alleged there must be some specific facts in the complaint which tend to show a meeting of the minds and some type of concerted activity. A plaintiff cannot rely on subjective suspicions and unsupported speculation. Lewis, 153 F. Supp. 3d at 695 (internal citations omitted).
Viewing the Amended Complaint in the light most favorable to Plaintiff, the Court finds that Plaintiff has failed to state a conspiracy claim against any DOC Defendant. There are no averments of fact in the Amended Complaint that plausibly allege an agreement or concerted activity between any DOC Defendant to violate Plaintiff's rights. Thus, it is recommended that the Court grant DOC Defendants' Partial Motion to Dismiss as to Plaintiff's conspiracy claim.
c. Access to Courts
The DOC Defendants move to dismiss Plaintiff's First Amendment access to courts claim alleged against Defendant Stephanie Wood. Plaintiff's claims arise out of representations made by Wood to the state court regarding Plaintiff's health and safety, that Plaintiff contends harmed his state court action. To state an access to courts claim, Plaintiff must allege facts plausibly establishing (1) he suffered an actual injury—that is, that he lost a chance to pursue a "nonfrivolous" or "arguable" underlying claim; and (2) he had no other "remedy that may be awarded as recompense" for the lost claim other than in the present denial of access suit. Christopher v. Harbury, 536 U.S. 403, 415 (2002); see also Monroe v. Beard, 536 F.3d 198, 205 (3d Cir. 2008) (per curium).
The exhibits attached to Plaintiff's Amended Complaint establish that Plaintiff petitioned for emergency relief in state court. The assigned judge investigated Plaintiff's allegations of food deprivation and, based upon his review of the available evidence, denied Plaintiff's motion for temporary injunctive relief. ECF No. 8-4. The state court directed the prothonotary to enter Plaintiff's petition on the docket as a civil action, and instructed Plaintiff to remit the appropriate fee or petition for IFP status to continue litigation of his claims. Id. Under these circumstances, Plaintiff has not alleged facts that plausibly establish that Wood impaired his access to court and, therefore, Plaintiff fails to state a claim upon which relief may be granted. It is recommended that the Court grant DOC's Partial Motion to Dismiss as to Plaintiff's First Amendment access to courts claim and terminate Wood as a defendant in this action.
d. Equal Protection
Plaintiff alleges that Defendants violated his rights under the Equal Protection Clause of the Fourteenth Amendment. The Equal Protection Clause provides no state shall "deny to any person within its jurisdiction the equal protection of the laws." U.S. Const. amend. XIV, § 1. The Equal Protection Clause requires state actors to treat all "similarly situated" persons alike. City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985). To bring a successful equal protection claim Plaintiff must allege facts showing "the existence of purposeful discrimination." Andrews v. City of Phila., 895 F.2d 1469, 1478 (3d Cir. 1990) (citation omitted), superseded in part by statute, Civil Rights Act of 1991, Pub. L. No. 102-166, 105 Stat. 1072. Further, he must establish he "received different treatment from that received by other individuals similarly situated." Id. A plaintiff's failure to "allege any facts showing that he was treated differently than any similarly situated individuals" is fatal to his equal protection claim. Slavoski v. Pawlowski, 462 F. App'x 215, 218 (3d Cir. 2012). To the extent that Plaintiff alleges a "class-of-one" claim; Plaintiff must also show there was no rational basis for the difference in treatment. See Hill v. Borough of Kutztown, 455 F.3d 225, 239 (3d Cir. 2006) (citing Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000)).
Plaintiff has identified no similarly situated individual whom Defendants have treated differently. Under these circumstances, Plaintiff's equal protection claim amounts to mere "general accusations" which are insufficient to prevail on a Section 1983 claim. Santos v. Sec'y of DHS, 532 F. App'x 29, 34 (3d Cir. 2013) (per curiam) ("[T]he amended complaint asserts blanket, non-specific allegations that [plaintiff] was treated differently because of his race and/or gender. There are no specific allegations illustrating how [plaintiff] was treated differently than those similarly situated. Accordingly, the Equal Protection claims also fail."); Johnson v. Phila. Hous. Auth., 448 F. App'x 190, 193 (3d Cir. 2011) (per curiam) ("[Plaintiff] has not pleaded that he was treated differently from any similarly situated person or group."). Therefore, it is recommended that the Court grant the DOC Defendants' Partial Motion to Dismiss as to Plaintiff's equal protection claim.
e. Due Process
In the Amended Complaint, Plaintiff also alleges that Defendants have denied him "due process of law." ECF No. 8 ¶ 66. Plaintiff does not define his claim as procedural or substantive in nature, and the basis of Plaintiff's claim is not apparent to the Court. The DOC Defendants argue, and the Court agrees, that regardless of the basis of his claim, Plaintiff has failed to state a claim upon which relief may be granted.
To state a procedural due process claim, "a plaintiff must allege that (1) he was deprived of an individual interest that is encompassed within the Fourteenth Amendment's protection of 'life, liberty, or property,' and (2) the procedures available to him did not provide 'due process of law.'" Hill v. Borough of Kutztown, 455 F.3d 225, 233-34 (3d Cir. 2006) (citation omitted). Plaintiff does not allege that any procedures available to Plaintiff for his various claims failed to provide him due process of law.
To the extent that Plaintiff seeks to assert a substantive due process claim under the Fourteenth Amendment, he must allege facts that plausibly establish: (1) that the particular interest at issue is protected by the Fourteenth Amendment, and (2) that the government's deprivation of that protected interest shocks the conscience. Connection Training Serv. v. City of Phila., 358 F. App'x 315, 319 (3d Cir. 2009). However, "if a constitutional claim is covered by a specific constitutional provision, such as the Fourth or Eighth Amendment, the claim must be analyzed under the standard appropriate to that specific provision, not under the rubric of substantive due process." United States v. Lanier, 520 U.S. 259, 272 n. 7 (1997); see also Betts v. New Castle Dev. Ctr., 621 F.3d 249, 260-61 (3d Cir. 2010).
Plaintiff's claims against various DOC officials and employees concerning his medical condition and alleged physical and sexual assault fall within the parameters of an Eighth Amendment claim. As such, the more-specific-provision rule forecloses any substantive due process claim. Ricks v. Shover, 891 F.3d 468, 473 (3d Cir. 2018) (alleged excessive force and sexual abuse of inmate by prison officials states an Eighth Amendment claim). Because Plaintiff fails to allege any facts giving rise to a procedural or substantive due process claim, it is recommended that the Court grant the DOC Defendants' Partial Motion to Dismiss as to Plaintiff's Fourteenth Amendment due process claim.
f. Tort Claims
Plaintiff alleges state law claims for defamation, "state law peculiar risk and superior risk tort," and "state law intentional torts." ECF No. 8 ¶¶ 67-69. The DOC Defendants move to dismiss each of these claims on the grounds of sovereign immunity. ECF No. 18 at 9.
The doctrine of sovereign immunity protects "state corrections officers ... from intentional tort claims, such as defamation." Muhammad v. DeBalso, 2019 WL 2501467, at *3 (M.D. Pa. June 17, 2019). As recently explained:
[D]efamation is an intentional tort in the Commonwealth of Pennsylvania. See Joseph v. Scranton Times, L.P., 959 A.2d 322, 334 (Pa. Super. Ct. 2008). "Pursuant to section 11 of Article 1 of the Constitution of Pennsylvania, ... the Commonwealth, and its officials and employees acting within the scope of their duties, shall continue to enjoy sovereign immunity and official immunity and remain immune from suit except as the General Assembly shall specifically waive the immunity." 1 Pa. C.S. § 2310. "The Pennsylvania legislature has not chosen to waive this immunity for intentional torts." Wicker v. Shannon, 2010 WL 3812351, at *9 (M.D. Pa. Sep. 21, 2010) (citing 42 Pa. C.S.A. § 8522).
Id.
Pennsylvania law provides for ten acts by a Commonwealth party that may result in the imposition of liability and for which the Commonwealth may not raise the defense of sovereign immunity. See, 42 Pa. C.S. § 8522(b) (setting forth ten exceptions to sovereign immunity, including (1) vehicle liability; (2) medical-professional liability; (3) care, custody or control of personal property; (4) Commonwealth real estate, highways and sidewalks; (5) potholes and other dangerous condition; (6) care, custody or control of animals; (7) liquor store sales; (8) National Guard activities; (9) toxoids and vaccines; and (10) sexual abuse of a minor). Because Plaintiff's unspecified general and intentional tort claims do not fall within any of the above identified exceptions to sovereign immunity, it is recommended that the Court grant DOC Defendants' Partial Motion to Dismiss as to Plaintiff's state law tort claims.
g. TRO and Injunctive Relief
Plaintiff also requests that the Court grant him either a preliminary injunction or a TRO requiring the DOC to provide his unlimited access to his legal documents that are currently stored or claimed by Plaintiff to be stolen or missing. ECF No. 40. To obtain a preliminary injunction,
the moving party must establish: "(1) a likelihood of success on the merits; (2) that [he] will suffer irreparable harm if the injunction is denied; (3) that granting preliminary relief will not result in even greater harm to the nonmoving party; and (4) that the public interest favors such relief." Kos Pharm., Inc. v. Andrx Corp., 369 F.3d 700, 708 (3d Cir. 2004). The irreparable harm alleged must be actual and imminent, not merely speculative. "[A] showing of irreparable harm is insufficient if the harm will occur only in the indefinite future. Rather, the moving party must make a clear showing of immediate irreparable harm." Campbell Soup Co. v. ConAgra, Inc., 977 F.2d 86, 91 (3d Cir. 1992) (internal quotations omitted).Moneyham v. Ebbert, 723 F. App'x 89, 91-92 (3d Cir. 2018) (per curiam) (alterations in original). "The standards for a temporary restraining order are the same as those for a preliminary injunction." Bieros v. Nicola, 857 F. Supp. 445, 446 (E.D. Pa. 1994) (citation omitted). To obtain either a TRO or a preliminary injunction, Plaintiff must establish that any potential delay in responding to Defendants' Motions to Dismiss due to the storage of his legal papers could cause irreparable harm. Given that Plaintiff has responded to the pending motions for the Court's consideration and included all necessary argument and facts, he necessarily cannot make the requisite showing. Under these circumstances, it is recommended that Plaintiff's Petition for TRO & Injunctive Relief, ECF No. 40, be denied.
2. Partial Motion to Dismiss of Medical Defendants
a. Natalie Austin
The Medical Defendants seek dismissal of Plaintiff's claims against Defendant Natalie Austin because Plaintiff has not alleged her involvement in any violation of his rights. ECF No. 31 at 3. To state a claim under Section 1983, a plaintiff must show that each named defendant, acting under color of state law, deprived him of a right secured by the Constitution or laws of the United States. 42 U.S.C. § 1983. "Personal involvement can be shown through allegations of personal direction or of actual knowledge and acquiescence. Allegations of participation or actual knowledge and acquiescence, however, must be made with appropriate particularity." Rode v. Dellarciprete, 845 F.2d at 1207. The Court has reviewed Plaintiff's Amended Complaint in detail and can find no allegations plausibly alleging Defendant Austin's involvement in the events and occurrences giving rise to his claims. Therefore, it is recommended that the Court grant the Medical Defendants' Partial Motion to Dismiss as to all claims against Defendant Austin.
b. Motion for More Definite Statement
Pursuant to Rule 12(e) of the Federal Rules of Civil Procedure, the Medical Defendants move for an order requiring Plaintiff to replead his legal claims set forth an paragraphs 60-69 of the Amended Complaint to specifically identify those claims asserted against each individual Defendant. ECF No. 31 at 5-7.
Federal Rule of Civil Procedure 12(e) permits a party to "move for a more definite statement of a pleading to which a responsive pleading is allowed but which is so vague or ambiguous that the party cannot reasonably prepare a response." Fed. R. Civ. P. 12(e). Rule 12(e) motions are disfavored given the liberal pleading standards established by Fed. R. Civ. P. 8(a), and the reasonable latitude granted pro se litigants. Garrett v. Wexford, 938 F.3d 69, 91-94 (3d Cir. 2019).
[W]e turn to the "plain" statement requirement, which prompts us to ask whether, liberally construed, a pleading "identifies discrete defendants and the actions taken by these defendants" in regard to the plaintiff's claims. See Harnage v. Lightner, 916 F.3d 138, 141 (2d Cir. 2019) (per curiam). Naturally, a pleading that is so "vague or ambiguous" that a defendant cannot reasonably be expected to respond to it will not satisfy Rule 8. Schaedler, 370 F.2d at 799; see also Simmons v. Abruzzo, 49 F.3d 83, 86 (2d Cir. 1995). And, of course, "[t]he dismissal of a complaint on the ground that it is unintelligible is unexceptional" because it cannot
satisfy the basic notice function of a pleading. Ruby Foods, 269 F.3d at 820 (citing Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir. 1988)).Id.at 93.
The Court finds that the allegations in the Amended Complaint are not so vague, ambiguous, or unintelligible that Defendants cannot frame a responsive pleading. Rather, as to Defendants Ridings, Daniel and Bresnahan, Plaintiff alleges specific acts related to the alleged conspiracy and violation of Plaintiff's First and Eighth Amendment rights and thus each defendant may adequately formulate a substantive response. ECF No. 8 ¶¶ 29-34, 39-49. It is recommended, therefore, that the Court deny Medical Defendants' Motion for a More Definite Statement.
D. CONCLUSION
For the foregoing reasons, it is respectfully recommended that the Court grant Corrections Defendants' Partial Motion to Dismiss, ECF No. 17, as to Plaintiff's claims for Retaliation, Conspiracy, Access to Court, Equal Protection, Due Process and state tort law claims. It is further recommended that the Court grant Medical Defendants Motion for Partial Dismissal of Plaintiff's Amended Complaint, ECF No. 30, as to all claims asserted against Defendant Natalie Austin, but deny the Motion for a More Definite Statement. Finally, it is recommended that the Court deny Plaintiff's Petition for Temporary Restraining Order & Injunctive Relief, ECF No. 40.
Before dismissing claims for failure to state a claim upon which relief may be granted, the Court must grant Plaintiff leave to amend his complaint unless amendment would be inequitable or futile. See Grayson v. Mayview State Hosp., 293 F.3d 103, 114 (3d Cir. 2002). Accordingly, it is recommended that the claims identified as deficient be dismissed without prejudice to allow Plaintiff a period of thirty days to file a Second Amended Complaint in conformance with this Report and Recommendation.
In accordance with the Magistrate Judges Act, 28 U.S.C. § 636(b)(1), and Local Rule 72.D.2, the parties may file written objections in accordance with the schedule established in the docket entry reflecting the filing of this Report and Recommendation. Objections are to be submitted to the Clerk of Court, United States District Court, 700 Grant Street, Room 3110, Pittsburgh, PA 15219. Failure to timely file objections will waive the right to appeal. Brightwell v. Lehman, 637 F.3d 187, 193 n. 7 (3d Cir. 2011). Any party opposing objections may respond to the objections within fourteen (14) days thereafter in accordance with Local Civil Rule 72.D.2.
Respectfully submitted,
/s/ Maureen P . Kelly
MAUREEN P. KELLY
UNITED STATES MAGISTRATE JUDGE Dated: July 14, 2020 cc: The Honorable Robert J. Colville
United States District Judge
All counsel of record by Notice of Electronic Filing
Marcellus A. Jones
KR-2421
SCI Smithfield
Box #999
1120 Pike Street
Huntingdon, PA 16652