Opinion
2:20-cv-286-RJC-KAP
03-08-2022
WILLIAM VICTOR, Plaintiff v. FAYETTE COUNTY, et al., Defendants
REPORT AND RECOMMENDATION
Keith A. Pesto, United States Magistrate Judge.
Recommendation
In 2020, plaintiff William Victor filed a complaint alleging that the conditions at the Fayette County Prison violated his civil rights. ECF no. 6. Victor is an inmate serving a sentence in the Pennsylvania Department of Corrections system who was at the Fayette County Prison in 2019 and 2020 as a pretrial detainee in Commonwealth v. Victor, CP-26-CR-2764-2018 (C.P. Fayette), order on appeal, No. 1329 WDA 2020, 264 A.3d 339 (table), text at 2021 WL 3910606 at *1 (Pa. Super. Sept. 1, 2021), in which Victor was prosecuted for assault on two corrections officers at S.C.I. Fayette. See also Victor v. Burns, No. 2:17-cv-984-KAP (W.D. Pa.).
I screened the complaint and recommended that it be dismissed for failure to state a claim with leave to amend, ECF no. 13, and the Court accepted my recommendation, giving Victor leave to file an amended complaint. ECF no. 18.
Victor timely filed the amended complaint at ECF no. 19. After screening it, I recommend that it be dismissed without further leave to amend.
Report
Victor's amended complaint is a succinct indictment of the Fayette County Prison as antiquated, overcrowded, and unsanitary. Count 1 alleges that he was housed in an 11-cell unit that actually housed 30 inmates, so that inmates who did not have bunks in a cell slept in boat-style beds on the tier. Victor does not clarify where he slept. Drinking water was supplied by a jug with ice in it because the corroded pipes made drinking water from them unsafe. The toilets in the cells “constantly” backed up, exposing Victor to sewage and its accompanying stench. Victor used his own cleaning supplies to attempt to deal with the feces, mold, and dirt. Victor's injuries were that he suffered stress, anxiety, depression, fear, and mental anguish. No physical injury is alleged.
Victor's description of the disgusting conditions in the prison is appalling but his allegations of injury are inadequate to support a federal claim. As a check on fraudulent or trivial claims, the Prison Litigation Reform Act requires proof (at this stage, allegation) of a physical injury or a sexual act involving genital contact before any claim for mental or emotional injury can be made. This is not merely a limitation on recovery: as amended by the PLRA, the Civil Rights of Institutionalized Persons Act, 42 U.S.C.§ 1997e(e) states:
No Federal civil action may be brought by a prisoner confined in a jail, prison or other correctional facility, for mental or emotional injury suffered while in custody without a prior showing of physical injury or the commission of a sexual act as defined in [18 U.S.C.§2246(2)].
The same lack is fatal to Count 2. Victor alleges that he had no access to exercise equipment, that because of overcrowding exercise in the housing unit was impracticable, and that the prison had no gym. Exercise was permitted in an enclosed space outside described as a cage. Victor describes his injury as not being able to exercise or not having anything to do or not being able to move. This is deplorable, but once again, Section 1997e(e) precludes any claim because an inadequate opportunity to exercise cannot be considered a physical injury.
Count 3 is that “Accountant Jill would improperly take money” deposited to Victor's inmate account. When Victor complained to other corrections staff, they told him it was an error. Apparently this error was remedied in some cases: Victor alleges that in the pretrial period he was moved between the DOC system and the county prison several times and alleges that the cycle of having his money taken, him complaining, and him receiving assurances that “it's gonna get fixed” was repeated several times. Victor's alleged injury is that in the end he is out $75 that was taken by defendant Jill and not returned.
First, the claim is inadequate. By using only the conclusory term “improperly, ” Victor has failed to allege enough facts to nudge any claim “across the line from conceivable to plausible.” See Ashcroft v. Iqbal, 556 U.S. 662, 683 (2009), quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). Second, Victor's allegation that what Accountant Jill did is equivalent to theft from his prison account means that his alleged loss has a remedy in state court. See 42 Pa.C.S.§ 8542(b)(2) (sovereign immunity waived for negligent losses to personal property in possession or control of the local agency); 42 Pa.C.S.§ 8550 (no defense of official immunity in cases of act by employee of local agency that constituted crime, fraud, malice, or willful misconduct). Because Victor has an “adequate postdeprivation remedy, ” see Hudson v. Palmer, 468 U.S. 517, 536 (1984), from any injury caused by defendant Jill, he has no federal claim.
Count 4 is that while a pretrial detainee Victor had no access to an attorney, and that as a pro se defendant Victor's defense was impaired because the prison has no law library and he had no access to legal materials. Victor's injury is that he was convicted of assaulting one of the corrections officers in February 2020.
As I noted before, “[a] prisoner making an access-to-the-courts claim is required to show that the denial of access caused actual injury.” Jackson v. Whalen, 568 Fed.Appx. 85, 87 (3d Cir.2014) (per curiam) (quoting Lewis v. Casey, 518 U.S. 343, 350 (1996)). Victor has done that by alleging that because of the alleged denial of access he was convicted of a crime. I leave aside for now that for at least some portions of the period covered by the complaint Victor did have appointed or retained counsel, and also that Victor does not specify who denied him access to legal material.
The law is settled that denial of access claims do not accrue until and unless there is a true loss of a claim or defense, which implies that relief has to be foreclosed in the action where the loss occurred. See Christopher v. Harbury, 536 U.S. 403 (2002). As that applies to a loss in a criminal case, a convicted criminal defendant and would-be civil plaintiff like Victor must first present his denial of access to counsel claim to the state court. A conviction obtained even in part as a result of denying a defendant access to counsel has been unconstitutional at least since Gideon v. Wainwright. But since proof of that claim by Victor “would necessarily imply the invalidity of his conviction or sentence, ” it is barred by the rule announced in Heck v. Humphrey, 512 U.S. 477 (1994), which is that a plaintiff may only bring a civil claim if he “can demonstrate that the conviction or sentence has already been invalidated.” Id., 512 U.S. at 487. Victor has or had a PCRA petition pending in the state court in which his claim that he was denied an attorney or other legal assistance can and must be established before he can present his fourth claim to this court.
The Court of Appeals, in Grayson v. Mayview State Hospital, 293 F.3d 103 (3d Cir.2002) and similar cases, directs district courts to allow plaintiffs in civil rights cases leave to amend unless that amendment is “futile” or “inequitable.” Victor is an experienced litigator. His inability to allege facts that would state a claim means that it is likely that any amendment would be futile. As the First Circuit observed long ago:
A plaintiff will not be thrown out of court for failing to plead facts in support of every arcane element of his claim. But when a complaint omits facts that, if they existed, would clearly dominate the case, it seems fair to assume that those facts do not exist.O'Brien v. DiGrazia, 544 F.2d 543, 546 (1st Cir. 1976). Even if that is not the case, it is inequitable to use the PLRA's screening function to make the pleading of federal claims an exercise in trial and error. No further amendment should be allowed.
Pursuant to 28 U.S.C.§ 636(b)(1), plaintiff can also within fourteen days file written objections to this Report and Recommendation. Plaintiff is advised that 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).