Opinion
Civil Action 3:18-CV-01437
12-27-2021
DEMETRIUS BAILEY, et al., Plaintiffs, v. LIBRARY ASSISTANT JURNAK, et al., Defendants.
BRANN, J.
REPORT AND RECOMMENDATION
KAROLINE MEHALCHICK, CHIEF UNITED STATES MAGISTRATE JUDGE
Presently before the Court is a motion for partial judgment filed by pro se Plaintiff Demetrius Bailey (“Bailey”) and a motion for summary judgment filed by Principal Berger, Anne Brown, Library Assistant Jurnak, C.J. McKeown, S Miller, Vincent Mooney, Kitchen Supervisor Porzucek, K Runson, and Tina Shoup (collectively, “Defendants”). (Doc. 147; Doc. 151). In his amended complaint, Bailey asserts claims against Defendants for alleged violations of his rights under the First, Eighth, and Fourteenth Amendments to the United States Constitution. (Doc. 19, at 1-3).
For the following reasons, it is recommended that Bailey's motion for partial judgment be denied as improper, and Defendants' motion for summary judgment be granted. (Doc. 147; Doc. 151).
I. BACKGROUND AND PROCEDURAL HISTORY
The factual background is taken from Defendants' statement of material facts and accompanying exhibits. (Doc. 152; Doc. 152-1; Doc. 152-2). Bailey has filed his response to Defendants' statement of facts and has provided accompanying supplements. (Doc. 154). Where Bailey disputes facts and supports those disputes in the record, as required by Local Rule 56.1, those disputes are noted. As Bailey is proceeding pro se, the Court will liberally construe his pleadings to accurately reflect what the record provides. Pursuant to Local Rule 56.1, the Court accepts as true all undisputed material facts supported by the record. Where the record evinces a disputed fact, the Court will take notice. In addition, the facts have been taken in the light most favorable to Bailey as the non-moving party, with all reasonable inferences drawn in his favor.
As of the date of this report and recommendation, Bailey has failed to file a statement of material facts in conjunction with his motion for partial judgment. (Doc. 147).
Bailey does not cite to any support in his response to Defendants' statement of material facts or his own statement of material facts. Where record support for opposition is lacking, facts are deemed undisputed. See Goode v. Nash, 241 Fed.Appx. 868, 869 (3d Cir. 2007) (“[A]lthough the party opposing summary judgment is entitled to ‘the benefit of all factual inferences in the court's consideration of a motion for summary judgment, the nonmoving party must point to some evidence in the record that creates a genuine issue of material fact,' and ‘cannot rest solely on assertions made in the pleading, legal memoranda or oral argument.'”) (internal quotations omitted). However, because Bailey is proceeding pro se and the Court is required to liberally construe his pleadings, the Court will, to the best of its ability, review the record to assess Bailey's assertions.
The operative document in this case is the Amended Complaint filed on February 11, 2019, which only asks for injunctive relief. (Doc. 152, ¶ 1, 2; Doc. 19). Bailey's Motion to File Supplemental Complaint filed on October 15, 2018, was denied as moot and dismissed because it was inapplicable to the instant suit. (Doc. 152, ¶ 3; Doc. 11; Doc. 14, at 3; Doc. 21, at 4). Bailey filed a Supplemental Amended Complaint and Second Supplemental Amended Complaint without a motion being granted to file the documents. (Doc. 152, ¶ 4; Doc. 37; Doc. 43). Bailey did not arrange for service of the Amended Complaint on Defendants C.O. Coledo, Superintendent Mahally, C.O. Yettes, Westover, Brennan, Higgins, Secretary Wetzel, Piskaisk, and Brennan. (Doc. 152, ¶ 5).
Additionally, the Court denied Bailey's first motion to supplement his complaint filed on October 15, 2018, because his fraud on the court claim was inapplicable to the instant suit. (Doc. 11; Doc. 14, at 3; Doc. 21, at 4). Thus, Bailey's first supplemental complaint was not permitted by the Court and is not part of the operative complaint. (Doc. 11). Throughout the course of litigation, Bailey has filed three additional supplements. (Doc. 37; Doc. 43; Doc. 92). Bailey filed a supplemental amended complaint on July 29, 2019; a second supplemental amended complaint on September 26, 2019; and a proposed supplemental amended complaint on March 9, 2020. (Doc. 37; Doc. 43; Doc. 92). Federal Rule of Civil Procedure 15(d) states that “[o]n motion and reasonable notice, the court may, on just terms, permit a party to serve a supplemental pleading setting out any transaction, occurrence, or event that happened after the date of the pleading to be supplemented.” Fed.R.Civ.P. 15(d). Per the Federal Rules of Civil Procedure, Bailey was required to file a motion to supplement his pleadings as he had previously done on October 5, 2018. (Doc. 11). Bailey did not seek leave of Court to file a supplement to his amended complaint pertaining to his July 2019, September 2019, or March 2020, filings. (Doc. 37; Doc. 43; Doc. 92). Thus, his three supplements were not deemed filed and are not components of the operative complaint. (Doc. 37; Doc. 43; Doc. 92). Bailey states that his “Original, Amended, Supplemental, [and] Second Supplemental Amended Complaints are his operative complaints.” (Doc. 154, ¶ 1). After reviewing the record, the Court finds that Bailey's amended complaint filed on February 11, 2019, and amendment filed on July 6, 2020, comprise the operative complaint. (Doc. 19; Doc. 106). First, in the report and recommendation filed on January 3, 2019, the undersigned granted Bailey leave to file an amended complaint and specifically instructed Bailey that his amended complaint must be a pleading that stands by itself without reference to the original complaint. (Doc. 14, at 13); see Young v. Keohane, 809 F.Supp. 1185, 1198 (M.D. Pa. 1992). On February 28, 2019, the Court adopted the undersigned's recommendation and deemed Bailey's amended complaint from February 11, 2019, filed. (Doc. 21, at 3; Doc. 14, at 14). Thus, Bailey's argument that his original complaint should be included in his operative complaint falls short as he was clearly instructed that his amended complaint must fully outline all of his claims without reference to the original complaint. (Doc. 14, at 13)
Bailey states that he did not receive the Court's Order from February 28, 2019. (Doc. 154, ¶ 3).
Bailey denies this fact; however his argument does not reflect what is stated on the docket. (Doc. 154, ¶ 3; Doc. 11; Doc. 14; Doc. 21).
Bailey denies this fact; however his argument does not reflect what is required by Federal Rule of Civil Procedure 15(d). (Doc. 154, ¶ 4).
Bailey's deposition was taken on October 16, 2019. (Doc. 152, ¶ 6; Doc. 152, ¶ 6). Bailey admitted that he could not recall the names of the Correctional Officers who he claimed retaliated against him. (Doc. 152, ¶ 7). Bailey alleged that Security Lieutenant Trevelan and Fiske retaliated against him. (Doc. 152, ¶ 10; Doc. 152, ¶ 10). Bailey did not dispute during the deposition that he did not request permission to file a Second Supplemental Amended Complaint. (Doc. 152, ¶ 11). Lieutenant Trevelan and Lieutenant Fiske are not Defendants in this lawsuit and Bailey did not take steps to add Lieutenant Trevelan and Lieutenant Fiske as Defendants after being told at his deposition that he had not been granted permission to file the Second Supplemental Amended Complaint. (Doc. 152, ¶ 12, 13).
Bailey states that he “did not have his [relevant] file in front of him” during his deposition. (Doc. 154, ¶ 7).
Bailey denies this fact; however his argument does not reflect what is required by Federal Rule of Civil Procedure 15(d). (Doc. 154, ¶ 11).
Bailey denies these facts without explanation or support. (Doc. 154, ¶ 12, 13).
Bailey admitted that he has had stomach problems for over 20 years. (Doc. 152, ¶ 14; Doc. 152, ¶ 14). Bailey does not have a medical expert to testify that his stomach problems became worse as a result of any Defendants' actions. (Doc. 152, ¶ 15). Bailey admitted that he has had a colonoscopy on two occasions. (Doc. 152, ¶ 19; Doc. 152, ¶ 19). Bailey admitted that Defendants Miller and Ransom were trying to help with his dietary issues because they spoke with the kitchen staff regarding his needs. (Doc. 152, ¶ 20; Doc. 152-1, at 54; Doc. 152, ¶ 20). Bailey admitted that he “don't have no problem” with Defendant Miller meaning that he does not hate her. (Doc. 152, ¶ 21; Doc. 152, ¶ 21). Bailey admitted that the GERD diet did not help him at all. (Doc. 152, ¶ 22; Doc. 152, ¶ 22). Bailey admitted that he had ordered commissary items while on his GERD diet which were improper for the diet, but stated he was bartering those items. (Doc. 152, ¶ 27; Doc. 152-1, at 97-98).
Bailey states that “Dr. Sarmiento is willing to testify from UPMC Somerset.” (Doc. 154, ¶ 15).
Bailey states that he used the commissary items to barter for food because “the GERD Diet is inadequate.” (Doc. 152, ¶ 27). In his deposition, Bailey stated that he used the commissary items to barter to “get stuff that they might have” and have other inmates perform tasks for him like laundry and typing. (Doc. 152-1, at 97-98).
Bailey admitted that he has been diagnosed with severe depression, anxiety, antisocial behavior, bipolar disorder, and paranoia for 25 years. (Doc. 152, ¶ 8; Doc. 152, ¶ 8). Bailey testified that his mental problems began after he was allegedly wrongfully convicted. (Doc. 152, ¶ 16). Bailey has no medical expert stating that his mental health was affected by the events in his complaint. (Doc. 152, ¶ 9). Bailey testified that because he was put in a Psychiatric Observation Cell that means it was retaliation. (Doc. 152, ¶ 23; Doc. 152, ¶ 23). Bailey admitted that he had previously seen his mental health records, but he was not able to understand them. (Doc. 152, ¶ 24).
Bailey explains that he “was never seen by a professional Psychiatrist” outside of prison. (Doc. 154, ¶ 16).
Bailey states that he has had over 27 years of treatment from psychiatrists who would be able to testify as experts, however Bailey fails to indicate who these psychiatrists are or who would testify in support of his case. (Doc. 143, ¶ 9).
Bailey states that he “was call[ed] to review his Mental Health Records by Laurie Savinovich but when he asked to look at them she said No.” (Doc. 152, ¶ 24).
Bailey admitted that his criminal appeals have been dismissed. (Doc. 152, ¶ 17; Doc. 152, ¶ 17). Bailey testified that all of the charges he has had in the Department of Corrections for the last 20 years were false. (Doc. 152, ¶ 18; Doc. 152, ¶ 18). Bailey admitted that the source of the allegations against Defendant Porzucek was a fellow inmate. (Doc. 152, ¶ 25; Doc. 152, ¶ 25). Bailey did not specify any case where the inability to have multiple copies affected his case. (Doc. 152, ¶ 28). Bailey admitted that he sued Defendant Porzucek because Porzucek answered his grievance. (Doc. 152, ¶ 29; Doc. 152-1, at 110).
Defendant Porzucek's Declaration is Exhibit A to Defendants' supporting brief. (Doc. 152, ¶ 26; Doc. 152-1). Bailey states that Defendant Porzucek's Declaration is a “whole bunch of lies.” (Doc. 154, ¶ 26).
Bailey denies this fact and states that “all Courts require original and at least two copies in all criminal appeals.” (Doc. 152, ¶ 28). Additionally, Defendant Jurnak's Declaration is Exhibit C to Defendants' statement of material Facts. (Doc. 152, ¶ 30; Doc. 152-2). Bailey denies the statements in Defendant Jurnak's Declaration as the “statements and threats are different and the Deputy Secretary Wenerowicz agreed.” (Doc. 14, ¶ 30).
Bailey denies this and states that “Defendant Porzucek violated [his] Eighth Amendment Rights in his Denial of GERD Diet.” (Doc. 152, ¶ 29).
II. MOTION FOR SUMMARY JUDGMENT STANDARD
Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment should be granted if “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A fact is “material” only if it might affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute of material fact is “genuine” if the evidence “is such that a reasonable jury could return a verdict for the non-moving party.” Anderson, 477 U.S. at 248. In deciding a summary judgment motion, all inferences “should be drawn in the light most favorable to the non-moving party, and where the non-moving party's evidence contradicts the movant's, then the non-movant's must be taken as true.” Pastore v. Bell Tel. Co. of Pa., 24 F.3d 508, 512 (3d Cir. 1994).
A federal court should grant summary judgment “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Farrell v. Planters Lifesavers Co., 206 F.3d 271, 278 (3d Cir. 2000). The Court need not accept mere conclusory allegations, whether they are made in the complaint or a sworn statement. Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 888 (1990). In deciding a motion for summary judgment, the court's function is not to make credibility determinations, weigh evidence, or draw inferences from the facts. Anderson, 477 U.S. at 249. Rather, the court must simply “determine whether there is a genuine issue for trial.” Anderson, 477 U.S. at 249.
“Although the party opposing summary judgment is entitled to the ‘benefit of all factual inferences in the court's consideration of a motion for summary judgment, the nonmoving party must point to some evidence in the record that creates a genuine issue of material fact.'” Velentzas v. U.S., No. 4: CV -07-1255, 2010 WL 3896192, at *7 (M.D. Pa. Aug. 31, 2010) (quoting Goode v. Nash, 241 Fed.Appx. 868, 868 (3d Cir. 2007) (citation omitted). The opposing party “cannot rest solely on assertions made in the pleadings, legal memorandum, or oral argument.” Velentzas, 2010 WL 3896192, at *7. If the non-moving party “fails to make a showing sufficient to establish the existence of an element essential to [the non-movant's] case, and on which [the non-movant] will bear the burden of proof at trial, ” Rule 56 mandates the entry of summary judgment because such a failure “necessarily renders all other facts immaterial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Jakimas v. Hoffmann-La Roche, Inc., 485 F.3d 770, 777 (3d Cir. 2007).
A. PLAINTIFF BAILEY'S MOTION FOR PARTIAL JUDGMENT
Per the Rules of Court for the United States District Court for the Middle District of Pennsylvania:
A motion for summary judgment filed pursuant to Fed.R.Civ.P.56, shall be accompanied by a separate, short and concise statement of the material facts, in numbered paragraphs, as to which the moving party contends there is no genuine issue to be tried.
. . .
Statements of material facts in support of, or in opposition to, a motion shall
include references to the parts of the record that support the statements.M.D. Pa. Civ. R. 56.1 Bailey has not filed a statement of material facts nor has he provided any reference to the record in support of his motion. (Doc. 147). Even liberally construing the motion for summary judgment, the Court cannot discern whether there are genuine issues of material fact as the motion does not cite to any facts on the record. (Doc. 147). Although the Court must liberally construe Bailey's pleading as a pro se litigant, he has failed to adequately plead a reason for summary judgment or comply with the rules of this Court. (Doc. 147).
Bailey's motion for summary judgment fails to demonstrate any material facts supported by the record and has not been properly filed. (Doc. 147). It is recommended that Bailey's motion for summary judgment be denied. (Doc. 147).
Additionally, Bailey's requests to compel discovery, for appointment of counsel, and for a hearing were all previously addressed by the Court in an Order dated June 28, 2021. (Doc. 158). The Court Ordered that Bailey's discovery request be denied, Bailey's request for appointment of counsel be denied, and Bailey's motion for a hearing be deemed withdrawn. (Doc. 158, at 11).
B. DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
Defendants move for summary judgment to dismiss the amended complaint under Federal Rule of Civil Procedure 56(c). (Doc. 155, at 1-4). Defendants contend that Bailey's amended complaint seeks injunctive relief and that such claims are moot because he is no longer incarcerated at the institution where the cause of action arose. (Doc. 155, at 7-8). Additionally, Defendants argue that Bailey has failed to (1) allege an access to courts claim because he has not demonstrated that “a non-frivolous action was adversely affected”; (2) establish the requisite facts to plead a retaliation claim against Defendants Jurnak and Porzucek; and (3) present facts to indicate that Defendant Porzucek was deliberately indifferent to Bailey's health. (Doc. 155, at 3-4, 8-14). In response, Bailey states that (1) his operative complaint includes his amended complaint and two supplemental complaints and that within those complaints he requests compensatory and punitive damages; (2) Defendants have failed to answer his discovery requests; and (3) Defendants Jurnak and Porzucek are the only Defendants addressed in Defendants' motion for summary judgment. (Doc. 156, at 1-2).
It is well settled that federal courts only have jurisdiction to decide an issue if it presents a live case or controversy. DeFunis v. Odegaard, 416 U.S. 312, 316 (1974). “The 'case or controversy requirement subsists through all stages of federal judicial proceedings, trial and appellate. . . .The parties must continue to have a personal stake in the outcome of the lawsuit.'” Williams v. Sherman, 214 Fed.Appx. 264, 266 (3d Cir. 2007) (quoting Lewis v. Cont'l Bank Corp., 494 U.S. 472, 477-78, (1990)). A claim must be dismissed as moot “[i]f developments occur during the course of adjudication that eliminate a plaintiff's personal stake in the outcome of a suit or prevent a court from being able to grant the requested relief . . . .” Ehrheart v. Verizon Wireless, 609 F.3d 590, 596 (3d Cir. 2010) (quoting Cty. of Morris v. Nationalist Movement, 273 F.3d 527, 533 (3d Cir. 2001)). A prisoner's transfer from the prison complained of generally moots his claims for prospective injunctive or declaratory relief. Sutton v. Rasheed, 323 F.3d 236, 248 (3d Cir. 2003); Weaver v. Wilcox, 650 F.2d 22, 27 n.13 (3d Cir. 1981). Such claims are not mooted when “a challenged action is (1) too short in duration to be fully litigated prior to its cessation or expiration; and (2) there is a reasonable likelihood that the same complaining party would be subjected to the same action again.” Sutton, 323 F.3d at 248 (alteration and internal quotation marks omitted). A prisoner's claim for damages is not mooted by a transfer. Sutton, 323 F.3d at 249 ; Allah v. Seiverling, 229 F.3d 220, 222 n.2 (3d Cir. 2000); Weaver, 650 F.2d at 27 n.13.
Bailey's amended complaint filed on February 11, 2019, and his additional amendment filed on July 6, 2020, serve as the operative complaint in this matter. See supra n. 3; (Doc. 19; Doc. 106). In his amended complaint “Bailey request[s] injuncti[ve] relief/hearing to stop defendants from these illegal legal mail policies and from receiving his special diet and retaliatory acts by Defendants.” (Doc. 19, at 5). Bailey's claims arise out of conduct that occurred while he was incarcerated at State Correctional Institution at Retreat (“SCI-Retreat”) and State Correctional Institution at Dallas (“SCI-Dallas”). (Doc. 19, at 1-2). On February 27, 2020, the Court updated the docket to reflect Bailey's transfer to State Correctional Institution at Camp Hill (“SCI-Camp Hill”). (Doc. 88). A review of the Department of Correction inmate locator indicates that Bailey is still located at SCI-Camp Hill. Thus, Bailey's request is now technically moot as he is no longer incarcerated at the SCI-Retreat or SCI-Dallas. See Capozzi v. Bledsoe, 560 Fed.Appx. 157, 159 (3d Cir. 2014) (dismissing prisoner's claims for injunctive relief as moot where prisoner was transferred from the SMU at USP Lewisburg to ADX Florence). This determination is consistent with a long line of Third Circuit cases holding that a prisoner-plaintiff's transfer to another prison or release renders the prisoner's claims for injunctive relief moot. See Spencer v. Sec'y Dep't of Corr., No. 14-2009, 2015 WL 3895302, at *1 n.2 (3d Cir. June 25, 2015) (“We note that, as Spencer was transferred out of SCI-Frackville in September 2012, his request for declaratory and injunctive relief against officials at that institution is moot.”); Banks v. Sec'y Pa. Dep't of Corr., 601 Fed.Appx. 101, 103 (3d Cir. 2015) (“The only relief potentially available to Banks for his RLUIPA claims is injunctive or declaratory, but to the extent that Banks seeks that relief against defendants at SCI-Retreat, his claims are moot because he was transferred to SCI-Somerset.”); Capozzi, 560 Fed.Appx. at 159; Mollett v. Leicth, 511 Fed.Appx. 172, 174 (3d Cir. 2013) (“Mollett's transfer rendered the case moot; and because it was unable to grant the relief sought, the District Court lacked jurisdiction over the merits of the case.”); Sutton, 323 F.3d at 249, as amended (May 29, 2003); Abdul-Akbar v. Watson, 4 F.3d 195, 206 (3d Cir. 1993) (“It is equally plain that, from that date forward, the district court could not provide Abdul-Akbar with meaningful relief by entering an injunctive order respecting the MSU in which Abdul- Akbar no longer was incarcerated.”). Thus, the Court has “no authority to impose the injunctive remedy” sought by Bailey. See Abdul-Akbar, 4 F.3d at 207; see also DeFunis, 416 U.S. at 316. Accordingly, the Court will grant Defendants' motion for summary judgment and dismiss Bailey's claim for injunctive relief. (Doc. 151; Doc. 19)
Bailey composed his amended complaint with all capital letters. (Doc. 19) When referencing the amended complaint, the Court reflects the appropriate use of punctuation. (Doc. 19).
(http://inmatelocator.cor.pa.gov).
C. LEAVE TO AMEND
The Court recognizes that pro se plaintiffs often should be afforded an opportunity to amend a complaint before the complaint is dismissed with prejudice unless granting further leave to amend would be futile or result in undue delay. See Fletcher-Harlee Corp. v. Pote Concrete Contractors, Inc., 482 F.3d 247, 253 (3d Cir. 2007); Alston v. Parker, 363 F.3d 229, 235-36 (3d Cir. 2004). As the claims in Bailey's amended complaint against the named Defendants are moot due to Bailey's desired injunctive remedy and his transfer, amendment would be futile. (Doc. 19; Doc. 106).
III. RECOMMENDATION
For the foregoing reasons, it is respectfully recommended that Bailey's Motion for Partial Judgment (Doc. 147) be DENIED; Defendants' Motion for Summary Judgment (Doc. 151) be GRANTED; and the Clerk of Court be directed to CLOSE this case.
NOTICE
NOTICE IS HEREBY GIVEN that the undersigned has entered the foregoing Report and Recommendation dated December 27, 2021. Any party may obtain a review of the Report and Recommendation pursuant to Rule 72.3, which provides:
Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636(b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses or recommit the matter to the magistrate judge with instructions.