Opinion
3:17-cv-192-KAP
03-02-2022
MUSTAFA WILLIAMS, Plaintiff, v. JOHN WETZEL, et al., Defendants
REPORT AND RECOMMENDATION
Keith A. Pesto, United States Magistrate Judge
Recommendation
In Burton v. Schamp, No. 18-1174, 2022 WL 405859, 25 F.4th 198 (3d Cir. Feb. 10, 2022), the Court of Appeals held that in cases where only the plaintiff has consented before judgment to Magistrate Judge jurisdiction under 28 U.S.C.§ 636(b)(1)(C), the appropriate procedure is for the Magistrate Judge to issue a report and recommendation to the District Court which is vested with the authority to dismiss the parties and enter final judgment in the matter. Accordingly, regardless of any consent by the plaintiff, for judgment to be entered in favor of a defendant who has not filed a consent prior to judgment the matter must be assigned to a District Judge.
I recommend that plaintiff's complaint be dismissed as to defendants Wetzel and Smith without leave to amend because plaintiff cannot state a claim against them. I recommend that summary judgment be entered in favor of defendant Pearson.
Report
In October 2017 Mustafa Williams, an inmate at S.C.I. Houtzdale, filed a complaint against Pennsylvania Department of Corrections Secretary John Wetzel, the Superintendent at Houtzdale, Barry Smith, the “Medical Director” at Houtzdale, J. Pearson, and two Doe defendants. Williams sought to state an Estelle v. Gamble claim by alleging that defendants had refused to accommodate his food allergies.
I screened the complaint at ECF no. 1 pursuant to the Prison Litigation Reform Act, and because plaintiff filed a consent to proceed before a Magistrate Judge I wrote my discussion in the form of a November 13, 2017 opinion finding that the complaint failed to state a claim against Wetzel and Smith and giving Williams leave to amend. ECF no. 3. Williams filed an amended complaint shortly thereafter. ECF no. 4. I screened that complaint, found it equally inadequate to state a claim against Wetzel and Smith, and in an opinion dated December 1, 2017, denied any further amendment as to them as inequitable. I eventually granted Williams' motion to file a second amended complaint, and that second amended complaint was filed at ECF no. 24.
The second amended complaint again named Wetzel, Smith, and Pearson, as well as three Doe defendants. Those three Doe defendants were identified as a physician assistant at Houtzdale, a doctor at Houtzdale, and a nurse at Houtzdale. Out of an abundance of caution, counsel for the Department of Corrections filed a motion to dismiss on behalf of Wetzel and Smith as well as Pearson. I ruled on that on September 26, 2018, in an opinion at ECF no. 32.
The matter proceeded against Pearson and the Doe defendants. On February 26, 2019, Pearson filed a motion for summary judgment, which I granted on the merits on April 22, 2019, in an opinion at ECF no. 53. I first noted that Williams, who did not respond to the motion, had never identified the Doe defendants, and dismissed them. As for Pearson, I found that Williams failed to show a genuine issue of fact either that Williams had a serious medical need or that Pearson was deliberately indifferent to it. Pearson held an administrative job, and she did not make the decision to approve a special diet for Williams or the decision to remove him from the diet.
Williams filed a notice of appeal. The Court of Appeals stayed the appeal because of pending appeals in other cases that presented the question whether a plaintiff-only consent conferred jurisdiction on a Magistrate Judge to rule on the merits of a matter, and eventually consolidated this matter with Burton v. Schamp, supra. When the other cases presenting that question settled or were otherwise disposed of without a decision on that matter, Burton v. Schamp became the lead case. The result of the Court of Appeals' examination of that issue, as stated above, is the holding that in plaintiff-only consent cases the Magistrate Judges Act requires the Magistrate Judge to issue a report and recommendation to the District Court which is vested with the authority to dismiss the parties and enter final judgment in the matter.
My previous analyses are offered as a recommendation, and they need no revision. Several issues were raised by counsel appointed for Williams at the Court of Appeals, and because it would not be unusual for those issues be presented in objections filed here, it is worthwhile to clarify matters. At the Court of Appeals appointed counsel argued the scope of consent jurisdiction of course, but also argued that summary judgment should be reversed because of a cloud of alleged errors relating to discovery, to Williams' failure to oppose summary judgment, and to the dismissal of the Doe defendants.
Although Williams had never filed a response to the motion for summary judgment, or a motion pursuant to Fed.R.Civ.P. 56(d), or a motion for extension of time, appellate counsel suggested that somehow the grant of summary judgment was error based on the fact that Williams sent Pearson a request for production of documents and (1) “Defendant Pearson never responded to his request,” Brief at 46; (2) Williams' failure to respond to the motion for summary judgment was due to restrictions placed on him “[s]hortly after the Magistrate Judge ordered discovery,” Brief at 44, which amounted to a complete restriction for approximately 68 hours beginning February 3, 2019, and a stay in the RHU for 255 days, Brief at 45; and (3) the documents requested from Pearson “likely would” create an issue of fact precluding summary judgment, Brief at 47. An unwary reader taking this at face value would be misled.
Even if it were shown that Williams was totally incapacitated for 68 hours (as a result of what he acknowledged was his withholding of his food tray on February 3, 2019, because he wanted to receive a “bag meal”) the “255 days in the RHU” is a complete red herring. Anyone familiar with this matter or with inmate litigation knows that being in the RHU is not incompatible with conducting litigation or filing motions for extension of time. The Court of Appeals noted, as had I, that an inmate named Kareem Carter filed a pleading in Williams' case from the RHU. The pleading was a letter from Carter to Executive Deputy Secretary Moore-Smeal, on which I and Governor Wolf and other persons had been copied. ECF no. 47. It was dated February 6, 2019, mailed from the most restrictive L5 level of the RHU on February 7, 2019, and filed February 8, 2019. It asked that Williams be transferred to another prison and claimed that Williams had been mistreated for 68 hours; Carter could be that precise because he stated that he was holding the letter before mailing so that he could update the exact number of hours Williams had been held naked in his cell.
Williams was himself demonstrably able to file pleadings with this court while in the RHU, namely his May 2019 motion for additional time to file a notice of appeal. ECF no. 54. His motion also identifies six grievances Williams had been able to file while in the RHU between February and May 2019: Grievance #785764, Grievance #787186 Grievance #787931, Grievance #796401, Grievance #797879, and Grievance #800436. Williams was not being held incommunicado, and he has never claimed he could not have contacted the court before May 2019. Williams' motion, filed almost a month after my opinion granting summary judgment, does not mention a need to conduct any discovery, does not mention unfinished discovery, and does not claim that any attempt to name the Doe defendants was thwarted by defendants. The motion contains as Exhibit C four requests to a staff member, Mrs. L. Gray, in which Williams seeks to review his medical records. Those requests begin with one dated February 13, 2019 (approximately two weeks before Williams would have received the motion for summary judgment), which was responded to with a reasonable request for Williams to specify what documents he was looking for; Williams replied on February 20, 2019, that he was looking for the record of a recent sick call pertaining to his diet, and the relevant progress note was provided. The last exchange took place on March 24 and 25, 2019, in which Williams stated he needed to review “all volumes” of his files and Mrs. Gray responded that someone would be over with them on a Tuesday or Thursday and if there were other documents Williams needed that he should identify them and she would copy them. No further exchanges are mentioned, and not one of Williams' six grievances is described as related to provision or withholding of medical records.
Any claim that Williams might want to make now that three years ago he was trying to name the Doe defendants and was thwarted because of a refusal of discovery or because he was placed in the RHU “shortly after” discovery began is waived. Appointed counsels' suggestions to the Court of Appeals that this is the history of this matter are false to fact.
I established the final discovery schedule in September 2018, not “shortly” before Williams went to the RHU. ECF no. 32. Williams never sought any additional time for discovery, he never mentioned difficulty with discovery, and he never filed any motion to compel. He sent what apparently was his only discovery request, a request for documents (signed December 5, 2018) 25 days before discovery ended, so no response was due before discovery ended. Discovery requests are only valid under Fed.R.Civ.P. 33(b)(2) if they give the opposing party sufficient time to respond before the end of the discovery period. NE Techs., Inc. v. Evolving Sys., Inc., 2008 WL 4277668, *6 (D.N.J. Sept. 12, 2008). It is apparent from Williams' exchanges with Mrs. Gray that Williams knew that he could review his medical file, and if there had been a problem it could have been routinely raised in a motion (and on March 11, 2019, Williams makes it clear that he is aware of this because he threatens to “file paperwork to the courts” to deal with an unhelpful employee) including one for extension of time. Without such a motion for extension of time, or a motion to compel, or even a motion to extend time to file a motion to compel, any claim that a lack of discovery precluded any action by Williams, if it ever had a factual basis, would be waived.
Appointed counsel next argued in a murky way to the Court of Appeals that in granting summary judgment I somehow erred because I had not sua sponte done an unspecified something in response to being “cc-ed” on Kareem Carter's letter. Brief at 45. This was significant because, according to appointed counsel, Brief at 46:
Moreover, at the time of Mr. Williams' deposition (before he was placed in RHU), Mr. Williams was able to identify the John and Jane Doe defendants in his operative complaint. JA 154, JA 164-65. Yet, before he had the opportunity to amend the complaint to name those individuals, he was placed into the RHU.
As Williams himself acknowledged (although he claimed his innocence) he had been placed in the RHU for assault on a corrections officer, not to thwart his amendment of the complaint. If one goes to the Joint Appendix filed with the Court of Appeals to find appointed counsels' support in the record for the claim that Williams was on the verge of identifying the Doe defendants, one will find that this is a creative use of three pages from Williams's deposition. The deposition had been taken on December 6, 2018, that is, almost two months before Williams was placed in the RHU. Assuming that being in the RHU prevents litigation activity, which is false to fact, any claim that a two-month period is insufficient opportunity to move to amend the complaint is meritless.
Appointed counsel characterize the deposition excerpts as Williams “identifying” Doe defendants. In the first excerpt, JA 154 = Williams depo. 18,Williams described Physician Assistant Patrick Nagel as the person who ordered blood work at Houtzdale, after which Williams was placed on a special diet; in the second excerpt, JA 164-65= Williams depo. 28-29, Williams said that Nurse Practitioner “Margret [sic] Barns” was the person who told him he was being taken off the special diet at the order of “a lady named Margret [sic] Gordon at central office.” These interactions of Williams with Nagel and Barns were face to face interactions that took place in 2016 and 2017, and any claim that Williams “identified” Nagel and Barns in December 2018 or could identify these two no earlier than December 2018 (which would still be two months before the placement in the RHU) is false.
Counsels' argument that there is some “document” that “likely would” create a jury issue as to anyone's deliberate indifference to Williams' dietary needs is sheer speculation. It also ignores Williams' own testimony about his interaction with the named defendant, Pearson, and the potential Doe defendants. Pearson made no decision about Williams' diet. Nagel ordered the blood work that led to the special diet being ordered. Barns conveyed the message from Gordon that Williams' diet was terminated.
What about the actual decisionmaker, Margaret Gordon? Her declaration was submitted as part of defendant's motion for summary judgment, see ECF no. 51 at 50-52: in it Gordon states that in her opinion as a dietician Williams had a low-level allergy to onions that could not be considered a serious medical need, and that the special diet was properly terminated because Williams was purchasing at the commissary the very foods he claimed to be allergic to. But Gordon is not a Doe defendant. Williams' express assertion is that both John Doe “doctor” defendants named in the second amended complaint at ¶¶ 17-22 are Patrick Nagel. Williams' depo. at 44-45. The Doe nurse mentioned in the second amended complaint at ¶ 26 could certainly be Barns, but could never be stretched to mean Gordon. Gordon is not described as a Doe defendant in any way that would allow Gordon to know that she was intended as a defendant. Under Fed.R.Civ.P. 15(c)(3), a party originally named as a Doe defendant must described with enough specificity that but for a mistake (i.e., lack of information) concerning identity plaintiff could have named her at the outset. This is a defendant-specific inquiry. See e.g. Cruz v. City of Camden, 898 F.Supp. 1100, 1110 (D.N.J. I995)(allowing relation back of the complaint as to some defendants). Gordon is not named or reasonably described as a defendant in the second amended complaint, and Williams failed to move diligently to add Gordon as a defendant in 2018 or even 2019. It would be an improper use of Rule 15(c) to entertain such an addition three years later because the limitations period has run and Gordon's defense would be prejudiced. See Garvin v. City of Philadelphia, 354 F.3d 215, 221 n.6 (3d Cir. 2003).
But overlooking everything, and imagining that Gordon had been named as a defendant, there is nothing that would cause a jury to disbelieve the evidence, discussed in my original decision, that Williams had no serious medical need. Second, Williams' entire theory of deliberate indifference as to every defendant is that they must have believed Williams had a serious medical need -despite the lack of supporting evidence- and their “real reason” for terminating his diet was to save money, not Williams' purchase of allergen-containing food at the commissary. Williams depo. at 30-31. There is just no evidence for this.
Pursuant to 28 U.S.C.§ 636(b)(1), the parties can within fourteen days file written objections to my 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).