Opinion
Case No. 1:16-cv-155-SBP-RAL
05-17-2019
GABRIEL ROSA-DIAZ, Plaintiff v. S. SIEGEL, LT. HEFFERNAN, CO FRIEDLINE and CO SCHLEMMER, Defendants
SUSAN PARADISE BAXTER UNITED STATES DISTRICT JUDGE REPORT AND RECOMMENDATION ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
[ECF No. 72] I. Recommendation
It is respectfully recommended that Defendants' Motion for Summary Judgment [ECF No. 72] be GRANTED. II. Report
A. INTRODUCTION
Plaintiff Gabriel Rosa-Diaz, a former inmate of State Correctional Institution at Forest Pennsylvania (SCI-Forest), commenced this action against forty-four employees of the Pennsylvania Department of Corrections (DOC) pursuant to 42 U.S.C. § 1983. Plaintiff filed his initial Complaint, pro se, on June 23, 2016. [ECF No. 3]. He filed an Amended Complaint on November 14, 2016, [ECF No. 21], and a Second Amended Complaint on January 30, 2018. [ECF No. 58]. The Second Amended Complaint asserted violations of the First, Fourth, Fifth, Eighth and Fourteenth Amendments to the U.S. Constitution based upon actions he alleged Defendants committed against him at SCI-Forest in July 2014. The Defendants moved to dismiss the Second Amended Complaint and, on September 11, 2018, the Court entered a Memorandum Order, granting in part and denying in part Defendants' Motion. [ECF No. 66]. Specifically, the Court dismissed, with prejudice, all claims against Defendants Overmyer, Mongelluzzo and Varner and all due process claims based on the loss of and damage to Plaintiff's personal property. Id. The Court declined to dismiss Plaintiff's access to courts claim against Defendants S. Siegel, Lt. Heffernan, CO Friedline and CO Schlemmer. Id. This is the sole remaining claim in this action. This claim asserts that the four remaining Defendants deprived Plaintiff of his ability to amend his Amended Complaint in a prior lawsuit, Rosa-Diaz v. Dow, 3:14-cv- 00005-KRG (Dow Litigation). Discovery has concluded and Defendants Siegel, Heffernan, Friedline and Schlemmer have moved for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. [ECF No. 72]. The Motion has been fully briefed and is ripe for Report and Recommendation and ultimate disposition.
Plaintiff is currently incarcerated at the State Correctional Institution at Smithfield.
B. LOCAL RULE 56.1 VIOLATION
Before addressing the factual background underlying this action, the Court notes that Plaintiff has failed to properly respond to Defendant's Concise Statement of Material Facts (ECF No. 74), as required by Local Rule 56.C.1. This rule requires non-moving parties to a motion for summary judgment to file a responsive concise statement in which they must: respond to each numbered paragraph in the movant's concise statement; admit or deny the facts contained in the movant's concise statement; set forth the basis for denial if any fact within the movant's concise statement is not entirely admitted by the non-moving party, with appropriate citation to the record; and set forth, in separately numbered paragraphs, any other material facts at issue. See LCvR 56.C.1. Courts of Western District of Pennsylvania require strict compliance with the provisions of Local Rule 56. See, e.g., Coleman v. Tice, 2018 WL 5724125, at *2 n. 3 (W.D. Pa. Oct. 10, 2018); First Guard Ins. Co. v. Bloom Services, Inc., 2018 WL 949224, at *2-3 (W.D. Pa. Feb. 16, 2018); Hughes v. Allegheny County Airport Authority, 2017 WL 2880875, at *1 (W.D. Pa. July 6, 2017).
A non-moving party "faces severe consequences for not properly responding to a moving party's concise statement." Hughes, 2017 WL 2880875, at *1. Any alleged material facts "set forth in the moving party's Concise Statement of Material Facts . . . which are claimed to be undisputed, will for the purpose of deciding the motion for summary judgment be deemed admitted unless specifically denied or otherwise controverted by a separate concise statement of the opposing party." LCvR 56.E. While courts provide some leniency to pro se litigants when applying procedural rules, the Court "'is under no duty to provide personal instruction on courtroom procedure or to perform any legal chores for the [pro se litigant] that counsel would normally carry out.'" Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 244 (3d Cir. 2013). Nor may pro se litigants ignore procedural rules that apply to parties assisted by counsel. McNeil v. United States, 508 U.S. 106, 113 (1993) (explaining that "we have never suggested that procedural rules in ordinary civil litigation should be interpreted so as to excuse mistakes by those who proceed without counsel").
Accordingly, to the extent that Plaintiff has failed to respond to any concise statement of material fact, that concise statement of material fact will be deemed admitted. LCvR 56.E. However, the Court will consider any facts properly alleged in Plaintiff's pro se responses that specifically contradict Defendants' statement of facts, to the extent that they are supported by the record. Boyd v. Citizens Bank of Pa., Inc., 2014 WL 2154902, at *3 (W.D. Pa. May 22, 2014) (stating that "[t]o the extent Plaintiff's statement of 'fact' specifically controverts Defendant's, the Court will consider these facts in determining whether summary judgment should be granted").
C. MATERIAL FACTS
Plaintiff alleges that the Defendants failed to provide him with his legal papers in the Dow Litigation in July, 2014 and thereby prevented him from amending his Amended Complaint in that case in response to a motion to dismiss. [ECF No. 58, ¶ 35]. More specifically, Plaintiff alleges the failure to provide his legal papers resulted in the dismissal of several defendants in the other lawsuit, namely, Reed, Cameron, Beck, Lewis and Wetzel, and the dismissal of his due process claims under the Eighth and Fourteenth Amendments. [ECF No. 58, ¶ 35].
In the Dow case, Plaintiff asserted Eighth Amendment and due process claims in connection with several allegedly improper misconducts that he received after being involved in a fight with another inmate on April 9 2012, while incarcerated at SCI-Cresson. Id. The named defendants included Reed, a Hearing Examiner; Beck, an Accountant; Cameron, the Superintendent at SCI-Cresson; Varner, the Chief Grievance Coordinator for the Department of Corrections; Lewis, the Chief Hearing Examiner for the Department of Corrections; and Wetzel, the Secretary of the Department of Corrections. Id. The claims were based, in pertinent part, on allegations that Dow and Sheridan issued false misconducts charges against him and that Hearing Examiner Reed displayed bias during the ensuing misconduct hearing. Id. Plaintiff's claims against the other defendants were based upon their handling of his grievance, misconduct charges and related appeals. Id.
The Dow defendants moved to dismiss Plaintiff's complaint on multiple grounds, including failure to state a claim for supervisory liability and the lack of personal involvement on the part of Bearjar, Cameron, Wetzel, Reed, Beck, Varner and Lewis. [Dow, 3:14-cv-00005, ECF Nos. 23, 24]. Plaintiff filed a Brief in Opposition to the motion to dismiss. [Id. at ECF No. 26]. Plaintiff was then granted leave to file an Amended Complaint, and did so on August 15, 2014. [Id. at ECF No. 30]. Defendants moved to dismiss the Amended Complaint. [Id. at ECF Nos. 31 & 32]. Plaintiff filed a Brief in Opposition to the motion to dismiss on September 30, 2014. [Id. at ECF No. 34].
On February 23, 2015, Magistrate Judge Cynthia Eddy issued a Report and Recommendation recommending the motion to dismiss be granted. [Id. at ECF No. 35]. Judge Eddy recommended dismissal of the claims against Cameron, Wetzel, Reed, Beck and Lewis due to the lack of any allegations that they were personally involved in any deprivation of a constitutional right. Id. Judge Eddy further found that Plaintiff had not been denied an impartial hearing in violation of his due process rights. Id. Judge Eddy noted that, in relation to the hearing on the misconduct charges, Plaintiff had been provided an opportunity to give a verbal statement at the hearing but chose not to offer anything. [Id. at ECF No. 35, p. 12]. Judge Eddy also determined that any further amendment of Plaintiff's pleadings would be futile. [Id at ECF No. 35, p. 15]. Plaintiff filed Objections to the Report and Recommendation. [Id. at ECF No. 36]. On March 10, 2015, District Judge Gibson entered a Memorandum Order, granting the partial motion to dismiss and adopting the Report and Recommendation as the Opinion of the Court. [Id. at ECF No. 37].
D. STANDARD OF REVIEW
Federal Rule of Civil Procedure 56(a) provides that summary judgment shall be granted if the "movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." The moving party bears the initial burden of identifying evidence, or the lack thereof, which demonstrates the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 330 (1986); Andreoli v. Gates, 482 F.3d 641, 647 (3d Cir.2007); UPMC Health System v. Metropolitan Live Ins. Co., 391 F.3d 497, 502 (3d Cir.2004). The burden then shifts to the non-movant to come forward with specific facts showing a genuine issue for trial. Fed.R.Civ.P. 56(e); Williams v. Borough of West Chester, Pa., 891 F.2d 458, 460-61 (3d Cir.1989) (the non-movant must present affirmative evidence—more than a scintilla but less than a preponderance—which supports each element of his claim to defeat a properly presented motion for summary judgment). The non-moving party must go beyond the pleadings and show specific facts by affidavit or by information contained in the filed documents (i.e. depositions, answers to interrogatories and admissions) to meet his burden of proving elements essential to his claim. Celotex, 477 U.S. at 322. See also Saldana v. Kmart Corp., 260 F.3d 228, 232 (3d Cir.2001).
When considering a motion for summary judgment, the court is not permitted to weigh the evidence or to make credibility determinations, but is limited to deciding whether there are any disputed issues and, if there are, whether they are both genuine and material. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). Material facts are those "that could affect the outcome" of the proceeding, and "a dispute about a material fact is 'genuine' if the evidence is sufficient to permit a reasonable jury to return a verdict for the non-moving party." Pearson v. Prison Health Service, 850 F.3d 526, 533-34 (3d Cir. 2017) (quoting Lamont v. New Jersey, 637 F.3d 177, 181 (3d Cir. 2011)). In assessing the motion, the court views the facts and draws all reasonable inferences in the light most favorable to the non-movant, here Plaintiff Rosa-Diaz. Scott v. Harris, 550 U.S. 372, 378 (2007).
E. ANALYSIS
Plaintiff alleges that the Defendants failed to provide him with his legal papers in the Dow Litigation in July 2014, preventing him from amending his Amended Complaint in response to a motion to dismiss. [ECF No. 58, ¶ 35]. Defendants respond that Plaintiff cannot establish that he suffered an actual injury because nothing in Plaintiff's legal papers could have saved his claim.
While prison inmates have a constitutional right of access to the courts, it is neither an absolute nor unfettered right. Bounds v. Smith, 430 U.S. 817, 821 (1977). Rather, the constitutional right of access only requires prison authorities to assist inmates in the preparation and filing of meaningful legal papers by providing them with adequate law libraries or adequate assistance from persons trained in the law. Id. at 828. Inmates do not have an abstract, freestanding right to a particular kind of access. Lewis v. Casey, 518 U.S. 343, 351 (1996).
Before a prisoner can claim denial of access to the courts, he must first demonstrate that his right of access was actually infringed upon and that some actual injury occurred, that is, that pending meritorious litigation was affected in some detrimental way. Lewis, 518 U.S. at 351; Oliver v. Fauver, 118 F.3d 175, 177 (3d Cir. 1997). See also, Kershner v. Mazurkiewicz, 670 F.2d 440, 444 (3d Cir. 1982) (en banc). As the Third Circuit has explained,
The actual injury requirement is derived from the constitutional principle of standing. Lewis, 518 U.S. at 349, 116 S.Ct. 2174. In this context, a claim premised upon an argument that the alleged deprivation hindered the presentation of a frivolous claim is not sufficient to entitle relief. See id. at 350, 116 S.Ct. 2174 (comparing a similar situation with that of a healthy inmate who is denied access to medical care); Walters v. Edgar, 163 F.3d 430, 434-435 (7th Cir. 1998). See also, Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (requiring injury to be actual or imminent, not hypothetical or conjectural).Gordon v. Morton, 131 Fed.Appx. 797, 798 (3d Cir. 2005).
The element of "actual injury" may "include a court dismissal of a complaint [or] an inability to even file a complaint." Booth v. King, 346 F.Supp.2d 751, 758 (W.D. Pa. 2004) (citing Lewis, 518 U.S. at 351). Other examples include "missed court dates, missed filing deadlines, a denial of legal assistance to which he was entitled, or the loss of a case which he should have won." See Fortes v. Harding, 19 F.Supp.2d 323, 327 (M.D.Pa. 1998). The sine qua non of a "viable claim of interference with access to the courts is a showing by the inmate of direct injury to [his] access to the courts." Reynolds v. Wagner, 128 F.3d 166, 183 (3d Cir. 1997) (internal citations and quotations omitted; emphasis added).
Accordingly, in order to survive summary judgment on his access to courts claim, Plaintiff must establish: (1) that he has lost the opportunity to pursue a nonfrivolous or arguable underlying legal claim; (2) that there is no other remedy available to him; and (3) that Defendants had the requisite intent to deny Plaintiff's constitutional right of access to courts. See Williams, 891 F.2d at 460-61.
Plaintiff's claim against the remaining Defendants—Heffernan, Siegel, Friedline, and Schlemmer— involves their alleged deprivation of Plaintiff's ability to properly amend his complaint in Dow. In that prior case, Plaintiff raised multiple Eighth Amendment and due process claims in connection with the misconduct and assessment process that stemmed from his altercation. The Court ultimately dismissed the claims against Cameron, Wetzel, Reed, Beck and Lewis due to lack of any allegations of personal involvement. [Dow, 3:14-cv-00005, ECF No. 35]. The Court also concluded that Plaintiff was not denied an impartial hearing in violation of his Due Process rights. Plaintiff now claims that the remaining Defendants' failure to provide him his legal papers in or around July, 2014, caused him injury because he could not properly amend his pleading in response to the Dow defendants' motion to dismiss, resulting in the dismissal of defendants Reed, Cameron, Beck, Lewis and Wetzel, and the dismissal of his due process claims under the Eighth and Fourteenth Amendments. [ECF No. 58, ¶ 35].
The record in the present case does not support a finding that Plaintiff sustained an actual injury as a result of Defendants' conduct. Prior to the dismissal of his claims against Reed, Cameron, Beck, Lewis, and Wetzel, and his due process claims, the Dow Court granted Plaintiff leave to file an amended complaint, which he did on August 15, 2014. In dismissing the claims at issue, the Court found that an attempt at further amendment would be futile. In the present case, Plaintiff has failed to point to anything in the record describing the nature or contents of Plaintiff's missing legal papers, or how they plausibly could have changed this outcome. In any event, drawing all inferences relating to their content in favor of Plaintiff, the Court finds that nothing contained in those papers could have allowed him to plead the personal involvement of defendants Reed, Cameron, Beck, Lewis and Wetzel. Plaintiff's claims against those parties stemmed from either their supervisory capacities or their involvement in the prison grievance system. Thus, as noted by the Dow Court, they fail as a matter of law, because "a prison official's secondary review of an inmate's grievance or appeal is not sufficient to demonstrate the personal involvement required the establish the deprivation of a constitutional right." Id. at 11-12. This Court agrees with the Dow Court's legal conclusion, and finds that no further amendment could have adequately alleged a legally viable claim against those defendants.
The parties at issue held the following roles within the prison system: Reed (a Hearing Examiner); Beck (an Accountant); Cameron (the Superintendent at SCI-Cresson); Varner (the Chief Grievance Coordinator for the Department of Corrections); Lewis (the Chief Hearing Examiner for the Department of Corrections); and Wetzel (the Secretary of the Department of Corrections). [3:14-cv-00005, ECF No. 5].
Similarly, Plaintiff did not require any additional papers or information to allege how his due process rights were violated in the grievance, misconduct and assessment process. Plaintiff's due process claims in Dow related to allegedly false misconducts and issues with a hearing adjudicating the DOC's assessment of his inmate account. Regarding the false misconduct allegation, "[i]t is well settled that a claim that a misconduct report was false, standing alone, does not violate a prisoner's constitutional rights, so long as procedural due process protections were provided." Richardson v. Sherrer, 344 Fed. Appx. 755, 757-58 (3d Cir. 2007). The Dow Court found that Plaintiff was provided procedural due process because he was given notice and an opportunity to respond in writing and verbally. Plaintiff has failed to articulate how his legal papers could have allowed him to disprove that he was provided notice and an opportunity to respond in writing and verbally. Accordingly, Plaintiff cannot plausibly allege that he suffered an actual injury in this regard.
Regarding the DOC assessment hearing, the Dow Court noted that Plaintiff's Complaint indicated that he was given adequate notice of the itemized charges and the assessment hearing itself, and that he fully participated in the hearing, focusing on his self-defense claim to the underlying misconduct charge. In dismissing this claim, the Dow Court noted that self-defense to the underlying misconduct charge "[was] not a valid ground for challenging the assessment of his inmate account." [3:14-cv-00005, ECF No. 35, p. 14]. This Court agrees; since Plaintiff's claim failed as a matter of law, Plaintiff cannot plausibly claim that his legal papers could have allowed him to properly plead a due process claim relating to the assessment hearing.
Further, as noted, the Dow Court held that amendment to Plaintiff's allegations against defendants Reed, Cameron, Beck, Lewis and Wetzel and his due process claims would be futile. This finding further supports the conclusion that Plaintiff's vaguely described legal papers could not have saved his claims from dismissal on Rule 12(b)(6) review. Plaintiff has failed to point to any portion of the record to show how the alleged deprivation of his legal papers caused the dismissal of the parties and claims in the prior lawsuit. On the contrary, the claims at issue in the Dow litigation appear deficient beyond repair. Even drawing every inference as to their contents in Plaintiff's favor, this Court concludes that his legal papers could not have salvaged these claims.
Accordingly, the Court finds that the record is insufficient to support a finding that Plaintiff suffered an actual injury as a result of the deprivation. Since no genuine dispute of material fact remains for trial on this necessary element of Plaintiff's sole remaining claim in this action, Defendants are entitled to summary judgment. See Crum v. Lindsay, 2007 WL 1545314, * 5 (M.D.Pa. 2007).
F. CONCLUSION
Therefore, it is respectfully recommended that Defendants' Motion for Summary Judgment [ECF No. 72] be GRANTED.
In accordance with 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72, the parties must 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 the Objections to respond thereto. See Fed.R.Civ.P. 72(b)(2). Extensions of time will not be granted. Failure to file timely objections may constitute a waiver of appellate rights. See Brightwell v. Lehman, 637 F.3d 187, 193 n.7 (3d Cir. 2011); Nara v. Frank, 488 F.3d 187 (3d Cir. 2007).
/s/ Richard A. Lanzillo
RICHARD A. LANZILLO
United States Magistrate Judge Dated: May 17, 2019