Opinion
1:20-CV-00194-SPB
08-12-2022
WESLEY M. POLLARD, SR, Plaintiff v. SUPERINTENDENT MICHAEL CLARK; DEPUTY JONES, MAJOR P. THOMPSON; CAPTAIN SKINNER; LT. T. DUBE; LT. R. BEDNARO, D. VARNER; CHIEF GRIEVANCE OFFICER; SERGEANT WATSON; CORRECTIONS OFFICER FROEHLICH; CORRECTIONS OFFICER ROSENBERG; CORRECTIONS OFFICER MORGAN BOYD; CORRECTIONS OFFICER FEAKLEAS; CORRECTIONS OFFICER FOX, Defendants
SUSAN PARADISE BAXTER UNITED STATES DISTRICT JUDGE
REPORT AND RECOMMENDATION ON DEFENDANTS' MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM ECFNO. 30
RICHARD A. LANZILLO UNITED STATES MAGISTRATE JUDGE
I. Recommendation
It is respectfully recommended that Defendants' motion to dismiss [ECF No. 30] Plaintiffs amended complaint be GRANTED and that Plaintiffs amended complaint be dismissed with prejudice.
II. Report
A. Introduction
Plaintiff Wesley Pollard, Sr. (Pollard), representing himself, commenced this civil rights action against thirteen employees of the Pennsylvania Department of Corrections (DOC), including employees of the State Correctional Institution at Albion (SCI-Albion), where he is
B. Standard of Review
A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the legal sufficiency of the complaint. Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993). "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Santiago v. Warminster Twp., 629 F.3d 121, 128 (3d Cir. 2010) (citations and quotation marks omitted). In making this determination, the court must accept as true all well-pled factual allegations in the complaint and views them in a light most favorable to the plaintiff. U.S. Express Lines Ltd. v. Higgins, 281 F.3d 383, 388 (3d Cir. 2002). Pro se complaints, "however inartfully pleaded," are held 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 the factual allegations of a pro se complaint 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 the litigant's unfamiliarity with pleading requirements. Boag v. MacDougall, 454 U.S. 364 (1982); United States 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").
C. Discussion
The undersigned's prior Report and Recommendation specifically identified the original complaint's omission of numerous factual allegations necessary to support Pollard's First Amendment and Eighth Amendment claims. ECF No. 27. The Report and Recommendation also emphasized the requirement that Pollard allege facts to support the personal involvement of each Defendant in the conduct upon which he based his claims asserted pursuant to 42 U.S.C.
In the final analysis, Pollard's amended complaint supports only that he is dissatisfied with his prison transfers and housing in the RHU and that he believes he should be assigned a cell without a cellmate. These grievances do not support a claim under the Eighth Amendment, the First Amendment, or the Fourteenth Amendment. "[A] prisoner has no liberty interest in a particular housing location or custody level while under the jurisdiction of correctional authorities." Ford v. Bureau of Prisons, 570 Fed.Appx. 246, 251 (3d Cir. 2014) (citing Meachum v. Fano, 427 U.S. 215, 224-25 (1976); Montanye v. Haymes, 427 U.S. 236, 242 (1976); Olim v. Wakinekona, 461 U.S. 238 (1983)). Therefore, "procedural due process safeguards were not triggered" by any of Pollard's prison transfers or housing assignments. Id.; see also, Kuehner v. Pennsylvania, 2010 WL 2245568, at *6 (W.D. Pa. May 7, 2010), report and recommendation adopted sub nom. Kuehner v. Commonwealth of Pennsylvania, Bd. of Prob. & Parole, 2010 WL 2196276 (W.D. Pa. June 1, 2010) (prisoners have no "federal liberty interest guaranteeing housing in a particular penal institution or providing protection against transfer from one institution to another within the state prison system"). There is likewise no support in the amended complaint for an inference that any prison official removed Pollard's z-code designation, declined to grant him a z-code, placed him in the RHU, or transferred him to a different institution because of any protected conduct on his part. See DeFranco v. Wolfe, 387 Fed.Appx. 147, 155 (3d Cir. 2010).
For these reasons and those stated in the undersigned's prior Report and Recommendation [ECF No. 27], Pollard's amended complaint should be dismissed. provides a roadmap to successful amendment," and the plaintiff fails to cure those deficiencies by amendment, the district court properly exercises its discretion in dismissing the plaintiffs claims with prejudice. Id. (citing Ca. Pub. Employees' Ret. Sys. v. Chubb Corp., 394 F.3d 126, 163-64 (3d Cir. 2004); Krantz v. Prudential Invs. FundMgmt. LLC, 305 F.3d 140, 144-45 (3d Cir. 2002)).
E. Conclusion
For the foregoing reasons, it is respectfully recommended that the Court grant the Defendants' motion at ECF No. 30 and dismiss Pollard's amended complaint with prejudice.
III. Notice
In accordance with 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72, any party may seek review by the district court by filing Objections to the Report and Recommendation within fourteen (14) days of the filing of this Report and Recommendation. Any party opposing the objections shall have fourteen (14) days from the date of service of Objections to respond thereto. See Fed. R. Civ. P. 72(b)(2). Failure to file timely objections may constitute a waiver of appellate rights. See Brightwell v. Lehman, 637 F.3d 187, 194 n.7 (3d Cir. 2011); Nara v. Frank, 488 F.3d 187 (3d Cir. 2007).