Opinion
3:21-cv-206-KRG-KAP
02-07-2024
ISSAC BILAL PEARSON, Plaintiff v. SERGEANT WOZNAK, Defendant
REPORT AND RECOMMENDATION RECOMMENDATION
KEITH A. PESTO, UNITED STATES MAGISTRATE JUDGE
Defendant's motion at ECF no. 31 to dismiss plaintiff's amended complaint in part should be granted.
Report
Plaintiff Pearson, serving a 17-34 year sentence at S.C.I. Somerset, filed a complaint in November 2021 subject to the Prison Litigation Reform Act, alleging an Eighth Amendment claim and a First Amendment retaliation claim against defendant Wozniak (the correct spelling is Woznak and that will be used hereafter; the Clerk shall correct the caption accordingly), a corrections officer, on the basis of events in September and October 2021.
I screened the complaint as required by the PLRA. Pearson filed objections to my recommendation but did not file an amended complaint or seek additional time to do so. In April 2023, the Court accepted my recommendation to dismiss other defendants and claims and sua sponte gave Pearson until May 5, 2023 to amend his complaint as to the Eighth Amendment claim against Woznak. The Court found the retaliation claim against Woznak to be adequate. Pearson filed a timely amended complaint at ECF no. 26. He made no meaningful changes to the Eighth Amendment claim except to delete the claimed injury from loss of business as a jailhouse lawyer. Once the amended complaint was served on Woznak, Woznak filed the pending motion to dismiss the Eighth Amendment claim as inadequate, and because Pearson professed to be suing Woznak in his official capacity, also moved to dismiss any official capacity claims as barred by the Eleventh Amendment. Pearson's response is at ECF no. 37. The only portion responsive to the motion to dismiss is the third sentence from the end: “On several occasions I threatened to be retaliated against by Woznak and there have been other altercations derivative of Woznak's remarks.” To the extent this allegation intends to explain the complaint it is inadequate. A plaintiff cannot amend the complaint by making statements in a memorandum, but if Pearson could, his conclusory allegation that there have been “altercations derivative of Woznak's remarks” would not add enough to state a claim.
Fed.R.Civ.P. 8(a) requires a 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. Conclusory listing of claims or elements of claims is not adequate. 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). Further, plaintiff must in a nonconclusory way allege facts that permit the inference that each named defendant is liable. See 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). Pearson's Eighth Amendment claim in both versions of his complaint is that Woznak was deliberately indifferent to an increased risk of harm caused to Pearson by Woznak's verbal abuse in the Fall of 2021. Pearson alleged that by calling Pearson “faggot,” Woznak caused Pearson to be “alienated among the population at SCI-Somerset,” and increased his risk of being assaulted. Pearson did not and does not allege any assault had taken place: his injury in the original complaint was his being “stigmatized” and the loss of fellow inmates seeking his services as a jailhouse lawyer. The amended complaint deletes the loss of business claim and expressly asserts that Pearson has suffered mental and emotional distress, but adds no facts that would show that Pearson was placed at a heightened risk of harm or that any assault caused by Woznak's remarks ever took place .
It is now two and a half years since Woznak's alleged verbal abuse. No allegations in the amended complaint flesh out the claim in the original complaint that has already been determined to be inadequate. It is implausible to the point of incredibility that Pearson's alleged remarks in the Fall of 2021 are currently remembered by any inmate other than Pearson, much less that they currently increase any risk of harm to Pearson. Exposing Woznak to liability for his alleged deliberate indifference to an unquantifiable increase in the risk of harm when that harm never happened would turn the Eighth Amendment into a speech code, when the settled rule is that verbal abuse is not actionable. There is an exception to that rule for certain categories of verbal abuse of inmates by corrections personnel when that verbal abuse raises the risk of assault (e.g., “snitch,” “child molester”) when “such insults resulted in increased assaults against him, or other significant harm.” McIntosh v. United States, 845 Fed.Appx. 88, 91 (3d Cir.2021). But a claim that abusive speech by itself is a violation of the Eighth Amendment is not currently recognized. If a medical care provider with deliberate indifference to an inmate's serious medical needs made a medication error, but the prescribed pill fell on the floor and was disposed of, an inmate could not sue on the theory that the increased risk of being poisoned when that did not happen itself constituted injury. If a unit manager with deliberate indifference placed two rival gang members together in a cell for a week without incident before correcting the error, neither inmate could sue over the increased risk of harm that never occurred. If some court ever establishes “increased risk due to verbal abuse” as a cause of action, Woznak at least would be protected by qualified immunity because no such cause of action existed in the Fall of 2021.
Finally, any claims against Woznak in his official capacity are claims against the Commonwealth. Will v. Michigan Dep't of State Police, 491 U.S. 58, 71 (1989)(“[A] suit against a state official in his or her official capacity is not a suit against the official but rather is a suit against the official's office. As such, it is no different from a suit against the State itself.”)(citations omitted). A state is not a person amenable to suit under Section 1983. Id. And a damages suit against Pennsylvania would further be barred by the Eleventh Amendment. Puerto Rico Aqueduct and Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 144 (1993) (“Absent waiver, neither a State nor agencies acting under its control may be subject to suit in federal court under the Eleventh Amendment.”) (citations omitted).
Pursuant to 28 U.S.C.§ 636(b)(1), the parties are given notice that they have fourteen days to file written objections to this Report and 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).
Discovery on the remaining claim shall be completed by May 31, 2024. Motions for summary judgment shall be filed on or before June 30, 2024, with response to motions due thirty days after receipt.
Notice by ECF to counsel and by U.S. Mail to:
Issac B. Pearson ML-2492
S.C.I. Somerset
1590 Walters Mill Road
Somerset, PA 15510-0001