Opinion
CIVIL ACTION NO. 3:19-cv-0853
12-18-2019
VICTOR DAVID CARRASQUILLO, #NP8848, Plaintiff, v. THERESA DELBASO, et al., Defendants.
(MARIANI, J.)
() REPORT AND RECOMMENDATION
This is a pro se prisoner civil rights action. It was commenced on January 25, 2019, when the plaintiff, Victor David Carrasquillo, filed his complaint in the Court of Common Pleas for Schuylkill County, Pennsylvania. (Doc. 1-2.) At the time of filing, Carrasquillo was incarcerated at SCI Mahanoy, a state correctional institution located in Schuylkill County, Pennsylvania. On May 16, 2019, following service of original process, the defendants removed the action to this Court pursuant to 28 U.S.C. §§ 1441 and 1446. (Doc. 1.)
One of the named defendants, Scott Miller, was not served with process. By the time the complaint was filed, he had apparently retired, and his location was unknown to the plaintiff. Counsel of record for the defendants, however, entered an appearance on behalf of all named defendants in the notice of removal—expressly including Miller among the removing defendants whom he represented. (See Doc. 1, at 1.) We note that, in joining in removal of the action, Miller did not waive proper service. See Adv. Surgery Ctr. v. Conn. Gen. Life, Ins. Co., Civil Action No. 12-2715 (JLL), 2012 WL 3598815, at *10 (D.N.J. July 31, 2012).
The moving defendants have moved to partially dismiss the complaint for failure to state a claim upon which relief can be granted, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. (Doc. 7.) This motion is fully briefed and ripe for disposition. (See Doc. 8; Doc. 12; Doc. 17.)
The moving defendants have characterized themselves as the "Served Defendants," which includes all named defendants other than Scott Miller. Miller has not yet been served with a summons in this case, so he is under no obligation to respond to the complaint, whether by answer or motion. See Merk Constr., Inc. v. Jemco, Inc., Civil Action No. 09-cv-01636, 2009 WL 10687695, at *1 n.1 (E.D. Pa. Dec. 9, 2009).
I. BACKGROUND
Carrasquillo is a state prisoner. He brings this action under 42 U.S.C. § 1983 seeking an award of damages plus declaratory and injunctive relief. He claims that the defendants were deliberately indifferent to serious health risks posed by his involuntary and extended exposure to secondhand tobacco smoke from a series of cellmates who smoked cigarettes in a cell they shared with him, and from inmates and staff who smoked in neighboring cells or other areas adjacent to his cell. Carrasquillo, a non-smoker, alleges that this secondhand smoke caused him to suffer from acute bronchitis, as well as headaches, dizziness, and nausea. He further alleges that the secondhand smoke routinely fouled the filter of his CPAP machine, preventing it from working properly and exacerbating his physical ailments.
For the entire relevant time, Carrasquillo was incarcerated at SCI Mahanoy, but he was housed in three different cells on three different cell blocks, each supervised by a different unit manager. The first period of alleged exposure to secondhand tobacco smoke occurred between June 2015 and September 2016, when Carrasquillo was housed in a cell on D-block, supervised by Unit Manager Christine Griffin. The second period of alleged exposure to secondhand tobacco smoke occurred between October 2016 and June 2017, when Carrasquillo was housed in a cell on C-block, supervised by Unit Manager Scott Miller and Acting Unit Manager Michelle Heenan. He also seeks to hold a correctional officer assigned to C-block, Steven Nicola, liable for his exposure to secondhand smoke during this time period. The third period of alleged exposure to secondhand tobacco smoke occurred between June 2017 and February 2018, when Carrasquillo was housed in a cell on F-block, supervised by Unit Manager Kevin Kellner. In addition to these defendants, Carrasquillo seeks to hold Theresa DelBalso, Warden of SCI Mahanoy, and Michael Damore, Major of Unit Management at SCI Mahanoy, liable for the conduct of their subordinates. Carrasquillo alleges that he has exhausted available administrative remedies with respect to all claims brought in this action, explicitly referencing Grievance Nos. 602704, 653774, and 683923.
The complaint identifies this defendant only by his last name, "Nicola," but the notice of removal provides his first name as well.
For prospective relief purposes, we find it reasonable to infer from the allegations of the complaint that Carrasquillo remained on F-block and under Kellner's supervision at the time of filing.
The complaint identifies this defendant as "Theresa Delbaso," but we adopt the spelling used by the defendants themselves in their notice of removal and motion papers.
Carrasquillo commenced this action by filing a state court complaint on January 25, 2019.
II. LEGAL STANDARDS
A. Rule 12(b)(1) Standard
Although the moving defendants have couched their Eleventh Amendment immunity defense with respect to the plaintiff's official capacity claims in terms of a failure to state a claim under Rule 12(b)(6), it is more appropriately viewed as a matter of subject matter jurisdiction and considered under Rule 12(b)(1). See Blanciak v. Allegheny Ludlum Corp., 77 F.3d 690, 693 n.2 (3d Cir. 1996).
The plaintiff bears the burden of establishing the existence of subject matter jurisdiction when challenged under Rule 12(b)(1). See Kehr Packages, Inc. v. Fidelcor, Inc., 926 F.2d 1406, 1409 (3d Cir. 1991). A defendant may challenge the existence of subject matter jurisdiction in one of two fashions: it may attack the complaint on its face or it may attack the existence of subject matter jurisdiction in fact, relying on evidence beyond the pleadings. See Gould Elecs. Inc. v. United States, 220 F.3d 169, 176 (3d Cir. 2000); Mortensen v. First Fed. Sav. & Loan Ass'n, 549 F.2d 884, 891 (3d Cir. 1977). Where a defendant attacks a complaint as deficient on its face, "the court must consider the allegations of the complaint as true." Mortensen, 549 F.2d at 891. "In deciding a Rule 12(b)(1) facial attack, the court may only consider the allegations contained in the complaint and the exhibits attached to the complaint; matters of public record such as court records, letter decisions of government agencies and published reports of administrative bodies; and 'undisputably authentic' documents which the plaintiff has identified as a basis of his claims and which the defendant has attached as exhibits to his motion to dismiss." Medici v. Pocono Mountain Sch. Dist., No. 09-CV-2344, 2010 WL 1006917, at *2 (M.D. Pa. Mar. 16, 2010). However, when a motion to dismiss attacks the existence of subject matter jurisdiction in fact, "no presumptive truthfulness attaches to plaintiff's allegations," and "the trial court is free to weigh the evidence and satisfy itself as to the existence of its power to hear the case." Mortensen, 549 F.2d at 891. This case falls into the former category.
B. Rule 12(b)(6) Standard
Rule 12(b)(6) of the Federal Rules of Civil Procedure authorizes a defendant to move to dismiss for "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). "Under Rule 12(b)(6), a motion to dismiss may be granted only if, accepting all well-pleaded allegations in the complaint as true and viewing them in the light most favorable to the plaintiff, a court finds the plaintiff's claims lack facial plausibility." Warren Gen. Hosp. v. Amgen Inc., 643 F.3d 77, 84 (3d Cir. 2011) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-56 (2007)). In deciding the motion, the Court may consider the facts alleged on the face of the complaint, as well as "documents incorporated into the complaint by reference, and matters of which a court may take judicial notice." Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007). Although the Court must accept the fact allegations in the complaint as true, it is not compelled to accept "unsupported conclusions and unwarranted inferences, or a legal conclusion couched as a factual allegation." Morrow v. Balaski, 719 F.3d 160, 165 (3d Cir. 2013) (quoting Baraka v. McGreevey, 481 F.3d 187, 195 (3d Cir. 2007)). Nor is it required to credit factual allegations contradicted by indisputably authentic documents on which the complaint relies or matters of public record of which we may take judicial notice. In re Washington Mut. Inc., 741 Fed. App'x 88, 91 n.3 (3d Cir. Sept. 25, 2018); Sourovelis v. City of Philadelphia, 246 F. Supp. 3d 1058, 1075 (E.D. Pa. 2017); Banks v. Cty. of Allegheny, 568 F. Supp. 2d 579, 588-89 (W.D. Pa. 2008).
Here, in addition to the complaint itself, we have considered the plaintiff's grievance records—submitted as attachments to the moving defendants' reply brief (Doc. 17-1; Doc. 17-2)—which are indisputably authentic documents that have also been incorporated into the complaint by reference. See Spruill v. Gillis, 372 F.3d 218, 223 (3d Cir. 2004); Alston v. Wenerowicz, 167 F. Supp. 3d 714, 718-19 (E.D. Pa. 2016). The moving defendants have also submitted a copy of email correspondence between defense counsel and an attorney who appears to have represented the plaintiff in one or more prior matters. (Doc. 17-3.) But this material has been excluded by the Court and has not been considered in the disposition of the instant motion for dismissal. See generally Fed. R. Civ. P. 12(d).
C. Sua Sponte Dismissal Standard
Under 28 U.S.C. § 1915A, the Court is obligated to screen a civil complaint in which a prisoner is seeking redress from a governmental entity or an officer or employee of a governmental entity. 28 U.S.C. § 1915A(a); James v. Pa. Dep't of Corr., 230 Fed. App'x 195, 197 (3d Cir. 2007). The Court must dismiss the complaint if it "fails to state a claim upon which relief may be granted." 28 U.S.C. § 1915A(b)(1). The Court has a similar obligation with respect to § 1983 actions concerning prison conditions. See 42 U.S.C. § 1997e(c)(1). See generally Banks, 568 F. Supp. 2d at 587-89 (summarizing prisoner litigation screening procedures and standards). The legal standard for dismissing a complaint for failure to state a claim under § 1915A(b)(1) or § 1997e(c) is the same as that for dismissing a complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Brodzki v. Tribune Co., 481 Fed. App'x 705, 706 (3d Cir. 2012) (per curiam); Mitchell v. Dodrill, 696 F. Supp. 2d 454, 471 (M.D. Pa. 2010); Banks, 568 F. Supp. 2d at 588.
III. DISCUSSION
The plaintiff asserts his federal civil rights claims pursuant to 42 U.S.C. § 1983. Section 1983 provides a private cause of action with respect to the violation of federal constitutional rights. The statute provides in pertinent part:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or any other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . . .42 U.S.C. § 1983.
Section 1983 does not create substantive rights, but instead provides remedies for rights established elsewhere. City of Oklahoma City v. Tuttle, 471 U.S. 808, 816 (1985). To establish a § 1983 claim, a plaintiff must establish that the defendant, acting under color of state law, deprived the plaintiff of a right secured by the United States Constitution. Mark v. Borough of Hatboro, 51 F.3d 1137, 1141 (3d Cir. 1995). To avoid dismissal for failure to state a claim, a civil rights complaint must state the conduct, time, place, and persons responsible for the alleged civil rights violations. Evancho v. Fisher, 423 F.3d 347, 353 (3d Cir. 2005).
Here, the plaintiff claims that the several defendants were deliberately indifferent to serious health risks posed by his involuntary and extended exposure to secondhand tobacco smoke from a series of cellmates who smoked cigarettes in a cell they shared with him, and from inmates and staff who smoked in neighboring cells or other areas adjacent to his cell. His claims fall into three separate periods of time, during each of which he was housed in a different cell block at SCI Mahanoy and interacted with different defendants. The first period, from June 2015 to September 2016, the plaintiff was housed in a cell on D-block, supervised by Unit Manager Christine Griffin. The second period, from October 2016 to June 2017, the plaintiff was housed in a cell on C-block, supervised by Unit Manager Scott Miller and Acting Unit Manager Michelle Heenan, and he interacted with correctional officer Steven Nicola. The third period, from June 2017 to February 2018, the plaintiff was housed in a cell on F-block, supervised by Unit Manager Kevin Kellner.
The moving defendants have moved for partial dismissal of the complaint. They seek dismissal of all official capacity claims against the defendants on Eleventh Amendment immunity grounds. They seek dismissal of all claims against Warden DelBalso and Major Damore for lack of personal involvement in the alleged wrongful conduct. They seek dismissal of all claims against Unit Manager Griffin on statute-of-limitations grounds. Finally, they seek dismissal of any claims concerning injuries that occurred more than two years before the commencement of this suit on statute-of-limitations grounds. The moving defendants do not seek dismissal of personal capacity claims against Unit Manager Kevin Kellner.
A. Official Capacity Claims
The complaint names each of the defendants in both their personal and official capacities. The moving defendants seek dismissal of claims brought against them in their official capacity on Eleventh Amendment immunity grounds.
The Eleventh Amendment prohibits suits brought in federal court against a state or where the state is the real party in interest, and in which the relief sought has an impact directly on the state itself. Pennhurst State Schs. & Hosp. v. Haldeman, 465 U.S. 89, 101-02 (1984); Allegheny Cty. Sanitary Auth. v. U.S. Envtl. Prot. Agency, 732 F.2d 1167, 1174 (3d Cir. 1984). To the extent the plaintiff seeks monetary damages, the defendants are immune under the Eleventh Amendment in their official capacity. See Will v. Michigan Dep't of State Police, 491 U.S. 58, 71 (1989); Howlett v. Rose, 496 U.S. 356, 365 (1990). Moreover, the Commonwealth of Pennsylvania has expressly declined to waive its sovereign immunity in federal court. See 42 Pa. Cons. Stat. Ann. § 8521(b); Lavia, 224 F.3d at 195; Hollihan, 159 F. Supp. 3d at 510.
But this plaintiff also seeks declaratory and injunctive relief. In Ex Parte Young, 209 U.S. 123 (1908), the Supreme Court held that the Eleventh Amendment does not bar suits against state officials in their official capacity seeking prospective relief to end ongoing violations of federal law. Koslow v. Pennslyvania, 302 F.3d 161, 178 (3d Cir. 2002). But to fit within the Ex Parte Young exception to immunity, "[t]he relief sought must be prospective, declaratory, or injunctive relief governing an officer's future conduct and cannot be retrospective, such as money damages." MCI Telecomm. Corp. v. Bell Atl. Pa., 271 F.3d 491, 506 (3d Cir. 2001).
Here, the injunctive relief the plaintiff seeks is clearly prospective and thus not barred by the Eleventh Amendment. See Giglio v. Supreme Court of Pa., 675 F. Supp. 266, 270 (M.D. Pa. 1987). The declaratory relief he seeks, however—a declaration that the defendants violated his rights in the past—is entirely retrospective and thus barred by the Eleventh Amendment with respect to the defendants in their official capacity. See Green v. Mansour, 474 U.S. 64, 68-71 (1985).
Accordingly, it is recommended that the plaintiff's claims for damages and for retrospective declaratory relief against the defendants in their official capacity be dismissed for lack of subject matter jurisdiction, pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure.
B. Retrospective Declaratory Relief
As noted above, the declaratory relief sought by the plaintiff is entirely retrospective in nature. "Because plaintiff seeks a declaratory judgment that only addresses retrospective actions, plaintiff's request is superfluous in light of the damages claims that he has brought" against the defendants in their personal capacity. Bowman v. Commonwealth of Pa. Dep't of Corrs., No. 4:CV-04-2176, 2006 WL 42091, at *3 (M.D. Pa. Jan. 6, 2006).
Accordingly, it is recommended that the plaintiff's claims for retrospective declaratory relief against the defendants in their personal capacity be dismissed for failure to state a claim upon which relief can be granted, pursuant to 28 U.S.C. § 1915A(b)(1) and 42 U.S.C. § 1997e(c)(1). See Shakouri v. Davis, 923 F.3d 407, 410 (5th Cir. 2019) (applying § 1915A(b)(1) to prisoner civil rights action removed from state court); Johnson v. Bova, No. 1:13-CV-2784, 2014 WL 2580080, at *2 (N.D. Ohio June 9, 2014) (same).
C. Personal Involvement
The complaint names Warden DelBalso and Major Michael Damore as defendants based on their supervision of the prison and of other staff who are defendants. The moving defendants seek dismissal of all claims against these two defendants for lack of personal involvement in the allegedly wrongful conduct.
It is well-established that "[c]ivil rights claims cannot be premised on a theory of respondeat superior. Rather, each named defendant must be shown . . . to have been personally involved in the events or occurrences which underlie a claim." Millbrook v. United States, 8 F. Supp. 3d 601, 613 (M.D. Pa. 2014) (citation omitted). As previously explained by the Third Circuit:
A defendant in a civil rights action must have personal involvement in the alleged wrongs . . . . [P]ersonal
involvement can be shown through allegations of personal direction or of actual knowledge and acquiescence. Allegations of participation or actual knowledge and acquiescence, however, must be made with appropriate particularity.Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988).
Beyond their supervisory roles, the complaint does not describe any specific, allegedly wrongful conduct by these two defendants. We note that each played a role in the administrative appeals process with respect to the plaintiff's grievances concerning his exposure to secondhand tobacco smoke. But it is well-settled that if a prison official's only involvement is investigating or ruling on an inmate's grievance after the incident giving rise to the grievance has occurred, there is no personal involvement on the part of that official. See Rode, 845 F.2d at 1208; see also Brooks v. Beard, 167 Fed. App'x 923, 925 (3d Cir. 2006) (per curiam) (characterizing such a claim as legally frivolous). "[T]he mere fact that an official receives and reviews a letter or grievance appeal is insufficient to establish personal involvement (i.e., failure to respond or react does not establish that the official endorsed or acquiesced in the conduct at issue)." Hennis v. Varner, Civil Action No. 12-646, 2014 WL 1317556, at *9 (W.D. Pa. Mar. 31, 2014); see also Moore v. Mann, Civil No. 3:CV-13- 2771, 2015 WL 3755045, at *4 (M.D. Pa. June 16, 2015) ("[T]he mere fact that Defendant Wetzel may have learned about Plaintiff's claims through a piece of correspondence . . . is not enough to impute liability to Wetzel. . . . [A]n allegation that an official ignored correspondence from an inmate . . . is insufficient to impose liability on the supervisory official."); Adderly v. Eidem, Civil No. 3:CV-11-0694, 2014 WL 643639, at *6 (M.D. Pa. Feb. 19, 2014) ("Simply alleging that an official failed to respond to a letter or request Plaintiff may have sent raising complaints is not enough to demonstrate they had the requisite personal involvement.").
Personal involvement, however, is not needed for prospective injunctive relief. See Parkell v. Danberg, 83 F.3d 313, 332 (3d Cir. 2016). With respect to the plaintiff's requested prospective injunctive relief, Warden DelBalso and Major Damore appear to be "officials 'who can appropriately respond to injunctive relief.'" Id.
Accordingly, it is recommended that the plaintiff's claims for damages against Warden DelBalso and Major Damore be dismissed for failure to state a claim upon which relief can be granted, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.
D. Claims Against Defendant Griffin
The complaint seeks to hold Unit Manager Griffin liable for the conditions of the plaintiff's confinement while incarcerated on D-block between June 2015 and September 2016. The moving defendants have moved to dismiss these claims as untimely because any injury to the plaintiff occurred more than two years before the commencement of this action on January 25, 2019.
Federal civil rights claims brought pursuant to 42 U.S.C. § 1983 are subject to Pennsylvania's two-year statute of limitations applicable to personal injury actions. Bougher v. Univ. of Pittsburgh, 882 F.2d 74, 78-79 (3d Cir. 1989); see also 42 Pa. Cons. Stat. Ann. § 5524. Although the running of a statute of limitations is an affirmative defense, which generally must be raised by way of answer to the complaint, see Fed. R. Civ. P. 8(c), where that defense is obvious from the face of the complaint and no development of the record is necessary, a court may dismiss a time-barred complaint for failure to state a claim under Rule 12(b)(6). See Robinson v. Johnson, 313 F.3d 128, 135 & n.3 (3d Cir. 2002); Chester v. Beard, 647 F. Supp. 2d 534, 540 (M.D. Pa. 2009); see also Collins v. Village of Palatine, 875 F.3d 839, 842 (7th Cir. 2017) ("Although the statute of limitations is an affirmative defense, dismissal under Rule 12(b)(6) of the Federal Rules of Civil Procedure is appropriate if the complaint contains everything necessary to establish that the claim is untimely. Moreover, judicial notice of public court documents is appropriate when ruling on a Rule 12(b)(6) motion to dismiss.") (citations omitted).
Here, based on the facts alleged in the complaint, the last possible date upon which the alleged wrongful conduct by Griffin occurred was September 30, 2016, due to the plaintiff's transfer to another cell block beyond Griffin's supervision. The plaintiff commenced this action when he filed his complaint in state court on January 25, 2019, nearly four months after the two-year limitations period expired on September 30, 2018.
In his opposition brief, the plaintiff asserts—correctly—that the Third Circuit has held that this limitations period "is tolled while a prisoner exhausts administrative remedies." Pearson v. Secretary Department of Corrections, 775 F.3d 598, 603 (3d Cir. 2015); see also Peterson v. Glunt, 752 Fed. App'x 125, 127 n.3 (3d Cir. 2019) (per curiam). But, as his grievance records indicate, Carrasquillo submitted his only inmate grievance concerning secondhand tobacco smoke on D-block on December 9, 2015. The grievance was initially denied by Major Damore on January 4, 2016. Carrasquillo appealed that denial to Warden DelBalso, who upheld the denial on January 29, 2016. Carrasquillo did not further appeal the grievance to the statewide chief grievance officer. (Doc. 17-1.) Thus, the plaintiff clearly completed the grievance process—which took 51 days altogether to complete—well outside the applicable two-year limitations period.
Accordingly, it is recommended that the plaintiff's claims against Unit Manager Griffin be dismissed for failure to state a claim upon which relief can be granted, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.
E. Claims Against Defendants Miller, Heenan, and Nicola
The complaint seeks to hold Unit Manager Miller, Acting Unit Manager Heenan, and Officer Nicola liable for the conditions of the plaintiff's confinement while incarcerated on C-block between October 2016 and June 2017. The moving defendants have moved to partially dismiss these claims as untimely to the extent any injury to the plaintiff occurred more than two years before the commencement of this action on January 25, 2019.
As noted above, these § 1983 claims are subject to the two-year state statute of limitations applicable to personal injury actions. Bougher, 882 F.2d at 78-79; see also 42 Pa. Cons. Stat. Ann. § 5524. The date when a § 1983 action accrues, however, is a matter of federal law. Wallace v. Kato, 549 U.S. 384, 388 (2007). Generally, that time is "when the plaintiff has 'a complete and present cause of action.'" Id. In the context of prisoner suits alleging continual exposure to secondhand tobacco smoke, federal courts have applied the continuing violation rule and found the accrual date for such claims to begin on the day the inmate was removed from the offending environment. See Wilson v. U.S. Penitentiary Leavenworth, 450 Fed. App'x 397, 399 (5th Cir. 2011) (per curiam); Hill v. Prunty, 55 Fed. App'x 418, 418-19 (9th Cir. 2003); Brooks v. Menifee, Civil Action No. CV07-0131-A, 2010 WL 7827470, at *4 (W.D. La. Sept. 27, 2010). With respect to his claims against these defendants, the plaintiff was exposed to the alleged environmental conditions continually until his transfer out of C-block (and out of their purview) in June 2017, well within the two-year limitations period.
Accordingly, it is recommended that the moving defendants' motion to dismiss be denied with respect to the plaintiff's claims against defendants Miller, Heenan, and Nicola.
F. Leave to Amend
The Third Circuit has instructed that if a complaint is vulnerable to dismissal for failure to state a claim, the district court must permit a curative amendment, unless an amendment would be inequitable or futile. Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002). Based on the facts alleged in the amended complaint, it appears that any amendment with respect to the claims for which we recommend dismissal would be futile. Therefore, we recommend that these claims be dismissed without leave to amend.
IV. RECOMMENDATION
For the foregoing reasons, it is recommended that:
1. The moving defendants' motion to dismiss (Doc. 7) be GRANTED in part and DENIED in part;
2. The plaintiff's claims for damages and for retrospective declaratory relief against all defendants in their official capacity be DISMISSED for lack of subject matter jurisdiction, pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure;
3. The plaintiff's claims for retrospective declaratory relief against all the defendants in their personal capacity be DISMISSED for failure to state a claim upon which relief can be granted, pursuant to 28 U.S.C. § 1915A(b)(1) and 42 U.S.C. § 1997e(c)(1);
4. The plaintiff's claims for damages against defendants Theresa DelBalso and Michael Damore in their personal capacity be DISMISSED for failure to state a claim upon which relief can be granted, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure;
5. The plaintiff's claims for damages and prospective injunctive relief against defendant Christine Griffin in her personal capacity be DISMISSED for failure to state a claim upon which relief can be granted, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure;
6. The plaintiff's claims for damages and prospective injunctive relief against defendants Scott Miller, Michelle Heenan, Steven Nicola, and Kevin Kellner, and his claims for prospective injunctive relief against defendants Theresa DelBalso and Michael Damore be permitted to proceed; and
7. This matter be remanded to the undersigned for further proceedings. Dated: December 18, 2019
s/Joseph F . Saporito , Jr.
JOSEPH F. SAPORITO, JR.
United States Magistrate Judge NOTICE
NOTICE IS HEREBY GIVEN that the undersigned has entered the foregoing Report and Recommendation dated December 18, 2019. Any party may obtain a review of the Report and Recommendation pursuant to Local 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.
Failure to file timely objections to the foregoing Report and Recommendation may constitute a waiver of any appellate rights. Dated: December 18, 2019
s/Joseph F . Saporito , Jr.
JOSEPH F. SAPORITO, JR.
United States Magistrate Judge