Opinion
1:21-CV-01892
03-10-2022
DARRYL V. LYONS, Plaintiff, v. JOHN E. WETZEL, Defendant.
Rambo Judge
REPORT AND RECOMMENDATION
Susan E. Schwab United States Magistrate Judge
I. Introduction.
Plaintiff Daryll V. Lyons asserts claims under 42 U.S.C. § 1983. But his complaint is not clear. And although Lyons was granted leave to file an amended complaint to clarify his claims, the relief he seeks, and the defendants he is suing, he has not filed amended complaint. Thus, however unclear, the complaint must be screened. Based on that screening, it is concluded that the complaint fails to state a claim upon which relief may be granted and that the Eleventh Amendment bars some of Lyons's claims. Accordingly, it is recommended that the court dismiss the complaint and close this case.
II. Background and Procedural History.
Lyons began this action by filing a complaint in the United States District Court for the Western District of Pennsylvania. On November 5, 2021, the case was transferred to this court. The complaint specifically names only one defendant: John E. Wetzel, the former Secretary of the Pennsylvania Department of Corrections.
In the complaint, Lyons contends that he was assaulted at the State Correctional Institution at Rockview on July 3, 2021, in retaliation for calling the prison abuse hotline. Lyons contacted security staff about that assault, but he was not satisfied with their response. Lyons was allegedly assaulted again on September 6, 2021, the same day he was scheduled for a medical test to determine if he has colon cancer. According to Lyons, this assault was done with the hope that he would die from lack of medical attention. Lyons contends that although he does not have a history of hemorrhoids, every day blood leaks from his anus. In the complaint, written in crayon, Lyons also complains about being denied access to unspecified legal materials.
Lyons requests in his complaint that the court issue an order providing that a severe penalty will follow any additional assaults. And he requests that counsel be appointed since he is being denied access to legal materials. He further requests that the court retain jurisdiction and issue any other relief the court deems necessary.
After the case was transferred to this court, Lyons was ordered to either pay the filing fee or to file an application for leave to proceed in forma pauperis. Lyons then filed an application to proceed in forma pauperis, which the court granted.
Lyons also filed a motion for a temporary restraining order or a preliminary injunction. On December 22, 2021, the undersigned issued a report and recommendation recommending that the court deny that motion. In connection with that recommendation, it was noted that it is not clear from the complaint whether Lyons intended to name Wetzel in his official capacity, his individual capacity, or both his official and individual capacities. Whether the complaint seeks injunctive relief, damages, or both bears on this question. But the nature of the relief requested in the complaint is not clear. It was thus recommended that Lyons be given leave to amend his complaint to clarify these issues.
It was also noted that to the extent that Wetzel was named in his individual capacity, Lyons does not allege that Wetzel was personally involved in the events at issue in the complaint (a necessary requirement if he is being sued in his individual capacity). Moreover, it was noted that the allegations in the complaint are conclusory and do not show deliberate indifference (a necessary requirement for an Eighth Amendment claim, which it appears is one type of claim that Lyons intended to plead).
On January 12, 2022, Judge Rambo adopted the undersigned's report and recommendation and denied Lyons's motion for a temporary restraining order or preliminary injunction. Judge Rambo also granted Lyons leave to file an amended complaint within 20 days clarifying his claims, the relief he seeks, and the defendants he is suing. Judge Rambo then remanded the case to the undersigned for further proceeding.
More than 20 days have passed since Judge Rambo's January 12th Order granting Lyons leave to amend his complaint, and Lyons has not filed an amended complaint. Thus, the complaint will be screened.
III. Screening of In Forma Pauperis Complaints-Standard of Review.
This court has a statutory obligation to conduct a preliminary review of complaints brought by prisoners given leave to proceed in forma pauperis in cases that seek redress against government officials. Specifically, the court must review the complaint in accordance with 28 U.S.C. § 1915A, which provides, in pertinent part:
(a) Screening. The court shall review, before docketing, if feasible or, in any event, as soon as practicable after docketing, a complaint in a civil action in which a prisoner seeks redress
from a governmental entity or officer or employee of a governmental entity.
(b) Grounds for dismissal. On review, the court shall identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint
(1) is frivolous, malicious, or fails to state a claim upon which relief may be granted; or
(2) seeks monetary relief from a defendant who is immune from such relief.
Under Section 1915A(b)(1), the court must assess whether a complaint “fails to state a claim upon which relief may be granted.” This statutory text mirrors the language of Rule 12(b)(6) of the Federal Rules of Civil Procedure, which provides that a complaint should be dismissed for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6).
When determining whether a complaint states a claim upon which relief can be granted, “[w]e must accept all factual allegations in the complaint as true, construe the complaint in the light favorable to the plaintiff, and ultimately determine whether plaintiff may be entitled to relief under any reasonable reading of the complaint.” Mayer v. Belichick, 605 F.3d 223, 229 (3d Cir. 2010). In making that determination, we “consider only the complaint, exhibits attached to the complaint, matters of public record, as well as undisputedly authentic documents if the [plaintiff's] claims are based upon these documents.” Id. at 230.
“Under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain a ‘short and plain statement of the claim showing that the pleader is entitled to relief.'” Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009) (quoting Fed.R.Civ.P. 8(a)(2)). The statement required by Rule 8(a)(2) must give the defendant fair notice of the nature of the plaintiff's claim and of the grounds upon which the claim rests. Erickson v. Pardus, 551 U.S. 89, 93 (2007). Detailed factual allegations are not required, but more is required than “labels, ” “conclusions, ” or “a formulaic recitation of the elements of a cause of action.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). “In other words, a complaint must do more than allege the plaintiff's entitlement to relief.” Fowler v. UPMC Shadyside, 578 F.3d 203, 211 (3d Cir. 2009). “A complaint has to ‘show' such an entitlement with its facts.” Id.
In considering whether a complaint states a claim upon which relief can be granted, the court “‘must accept all facts alleged in the complaint as true and construe the complaint in the light most favorable to the nonmoving party.'” Krieger v. Bank of Am., N.A., 890 F.3d 429, 437 (3d Cir. 2018) (quoting Flora v. Cty. of Luzerne, 776 F.3d 169, 175 (3d Cir. 2015)). But a court “need not credit a complaint's bald assertions or legal conclusions.” Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997). A court also need not “assume that a . . . plaintiff can prove facts that the . . . plaintiff has not alleged.” Associated Gen. Contractors of Cal. v. California State Council of Carpenters, 459 U.S. 519, 526 (1983).
Following Twombly and Iqbal, a well-pleaded complaint must contain more than mere legal labels and conclusions. Rather, it must recite factual allegations sufficient to raise the plaintiff's claimed right to relief beyond the level of mere speculation. In practice, consideration of the legal sufficiency of a complaint entails a three-step analysis:
First, the court must “tak[e] note of the elements a plaintiff must plead to state a claim.” Second, the court should identify allegations that, “because they are no more than conclusions, are not entitled to the assumption of truth.” Finally, “where there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement for relief.”Santiago v. Warminster Twp., 629 F.3d 121, 130 (3d Cir. 2010) (footnote and citations omitted) (quoting Iqbal, 556 U.S. at 675, 679).
A complaint filed by a pro se litigant is to be liberally construed and “‘however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.'” Erickson, 551 U.S. at 94 (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)). Nevertheless, “pro se litigants still must allege sufficient facts in their complaints to support a claim.” Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 245 (3d Cir. 2013).
IV. Discussion.
The complaint asserts 42 U.S.C. §1983 claims. “Section 1983 imposes civil liability upon any person who, acting under the color of state law, deprives another individual of any rights, privileges, or immunities secured by the Constitution or laws of the United States.” Shuman v. Penn Manor School Dist., 422 F.3d 141, 146 (3d Cir. 2005). Section 1983 “does not create any new substantive rights but instead provides a remedy for the violation of a federal constitutional or statutory right.” Id. To establish a claim under §1983, the plaintiff must establish a deprivation of a federally protected right and that this deprivation was committed by a person acting under color of state law. Woloszyn v. County of Lawrence, 396 F.3d 314, 319 (3d Cir. 2005).
Although the exact nature of Lyons' claims is not clear, he does reference 42 U.S.C. § 1983 in his complaint. See doc. 1 at 1.
Because Lyons has not taken the opportunity granted to him to file an amended complaint, we construe the complaint as naming only defendant Wetzel (the only defendant specifically named in the complaint) based on guards assaulting Lyons, based on Lyons being denied unspecified legal materials, and based on Lyons' medical condition.
A. Individual Capacity Claims.
To the extent that Lyons names defendant Wetzel in his individual capacity, the complaint fails to state a claim upon which relief may be granted because Lyons has not alleged that Wetzel was personally involved in the events underlying his claims.
Liability under Section 1983 “‘cannot be predicated solely on the operation of respondeat superior.'” Evancho v. Fisher, 423 F.3d 347, 353 (3d Cir. 2005) (quoting Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1998)). Thus, a constitutional deprivation cannot be premised merely on the fact that the defendant was a prison supervisor when the incidents set forth in the complaint occurred. See Alexander v. Forr, 297 Fed.Appx. 102, 104-05 (3d Cir. 2008). “Because vicarious liability is inapplicable to Bivens and § 1983 suits, a plaintiff must plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution.” Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009).
Here, Lyons has not alleged any facts that support an inference that defendant Wetzel was personally involved in the alleged violations of his constitutional rights. Thus, the complaint fails to state a claim against defendant Wetzel in his individual capacity upon which relief can be granted.
B. Official Capacity Claims.
If Lyons intended to sue defendant Wetzel in his official capacity, the current Secretary of the Pennsylvania Department of Corrections is automatically substituted for Wetzel. See Fed.R.Civ.P. 25(d) (“An action does not abate when a public officer who is a party in an official capacity dies, resigns, or otherwise ceases to hold office while the action is pending. The officer's successor is automatically substituted as a party.”). But it is not clear that this is what Lyons intended.
Moreover, any claim against the Secretary in his official capacity for damages is barred by the Eleventh Amendment. Official-capacity suits are “only another way of pleading an action against an entity of which an officer is an agent.” Monell v. New York City Dept. of Social Services, 436 U.S. 658, 690, n. 55 (1978). In an official-capacity suit, the entity of which the officer is an agent is the real party in interest. Kentucky v. Graham, 473 U.S. 159, 166 (1985). As such, claims against state officials in their official capacities for damages are treated as suits against the state and are barred by the Eleventh Amendment. Christ the King Manor, Inc. v. Sec'y U.S. Dep't of Health & Hum. Servs., 730 F.3d 291, 318 (3d Cir. 2013). Thus, the Eleventh Amendment bars any claim for damages against the Secretary in his official capacity.
Although claims against state officials in their official capacities for damages are barred by the Eleventh Amendment, under Ex parte Young, claims against state officials in their official capacities for prospective injunctive relief are not barred by the Eleventh Amendment. See Ex parte Young, 209 U.S. 123 (1908). Here, the nature of any injunctive relief that Robertson seeks is not clear. As noted above, he seeks an order stating that severe penalties will follow if any more assaults take place. See doc. 1 at 7, ¶ 1.
In determining if Ex parte Young applies, the court “must look to the substance rather than the form of the relief requested to determine whether [the] claims are barred by the Eleventh Amendment.” Blanciak v. Allegheny Ludlum Corp., 77 F.3d 690, 698 (3d Cir. 1996). And “[t]he type of prospective relief permitted under Young is relief intended to prevent a continuing violation of federal law.” Hindes v. F.D.I.C., 137 F.3d 148, 166 (3d Cir. 1998); see also Papasan v. Allain, 478 U.S. 265, 277-78 (1986) (observing that “Young has been focused on cases in which a violation of federal law by a state official is ongoing”). “In determining whether the doctrine of Ex parte Young avoids an Eleventh Amendment bar to suit, a court need only conduct a ‘straightforward inquiry into whether [the] complaint alleges an ongoing violation of federal law and seeks relief properly characterized as prospective.'” Verizon Maryland, Inc. v. Pub. Serv. Comm 'n of Maryland, 535 U.S. 635, 645 (2002) (quoting Idaho v. Coeur d'Alene Tribe of Idaho, 521 U.S. 261, 296 (1997) (concurring opinion)).
Here, although Lyons requests an order that severe penalties will follow if any more assaults take place, Lyons does not allege facts from which it can be inferred that there is an ongoing violation of federal law. Rather, he alleges that officers in the past assaulted him. He does not allege facts that raise a reasonable inference that he is currently at risk of being assaulted. Thus, we cannot infer that Lyons is truly seeking prospective injunctive relief, and Ex parte Young does not apply. Accordingly, to the extent Lyons's intended to sue the Secretary in his official capacity, any such claim is barred by the Eleventh Amendment.
Lyons also alleges that he was denied unspecified legal materials and he makes passing reference to his medical condition. But he only requests an order that severe penalties will follow if any more assaults take place. Again, although Lyons was given leave to amend to clarify, among other things, the relief that he is seeking, he has not filed an amended complaint.
Moreover, given that Lyons does not allege an ongoing violation of federal law or that he is likely to suffer future injury, he has not alleged that he has standing to seek injunctive relief. Previous exposure to allegedly illegal conduct is not sufficient to establish standing for injunctive relief. See O'Shea v. Littleton, 414 U.S. 488, 495-96 (1974) (“Past exposure to illegal conduct does not in itself show a present case or controversy regarding injunctive relief, however, if unaccompanied by any continuing, present adverse effects.”). Rather, “the plaintiff must show that he is ‘likely to suffer future injury' from the defendant's conduct.” McNair v. Synapse Grp. Inc., 672 F.3d 213, 223 (3d Cir. 2012) (quoting City of Los Angeles v. Lyons, 461 U.S. 95, 105 (1983)). And “[m]ere ‘allegations of possible future injury are not sufficient.'” Schaller v. United States Soc. Sec. Admin., 844 Fed.Appx. 566, 571 (3d Cir. 2021) (quoting Clapper v. Amnesty Int'l USA, 568 U.S. 398, 409 (2013)). Rather, “the ‘threatened injury must be certainly impending to constitute injury in fact.'” Thorne v. Pep Boys Manny Moe & Jack Inc., 980 F.3d 879, 893 (3d Cir. 2020) (quoting Clapper, 568 U.S. at 409). “And there must be at least a ‘substantial risk' that the harm will occur.” Id. (quoting Clapper, 568 U.S. at 414 n.5). Here, because Lyons does not allege an ongoing violation of his federal law or that there is a substantial risk that officers will again subject him to excessive force, deny him legal materials, or be deliberately indifferent to his serious medical needs, Lyons has not pleaded facts from which it can reasonably be inferred that he has standing to seek injunctive relief.
C. Further leave to amend would be futile.
Before dismissing a complaint under the screening provision of 28 U.S.C. § 1915, the court must grant the plaintiff leave to amend his complaint unless amendment would be inequitable or futile. See Grayson v. Mayview State Hospital, 293 F.3d 103, 114 (3d Cir. 2002). Here, although Lyons was previously given leave to amend, he failed to file an amended complaint. Further leave to amend would be futile.
D. Counsel should not be appointed.
In his complaint, Lyons requests that the court appoint him counsel. “Indigent civil litigants possess neither a constitutional nor a statutory right to appointed counsel.” Montgomery v. Pinchak, 294 F.3d 492, 498 (3d Cir. 2002). Yet 28 U.S.C. § 1915(e)(1) provides that the court may request an attorney to represent an indigent litigant in a civil case. While the court has broad discretion to request an attorney to represent an indigent civil litigant, Tabron v. Grace, 6 F.3d 147, 153 (3d Cir. 1993), it may not require an unwilling attorney to accept an appointment in a civil case, Mallard v. U.S. District Court, 490 U.S. 296, 310 (1989).
“Appointing counsel for an indigent civil litigant is ‘usually only granted upon a showing of special circumstances indicating the likelihood of substantial prejudice to him resulting, for example, from his probable inability without such assistance to present the facts and legal issues to the court in a complex but arguably meritorious case.'” Parkell v. Danberg, 833 F.3d 313, 340 (3d Cir. 2016) (emphasis in original) (quoting Smith-Bey v. Petsock, 741 F.2d 22, 26 (3d Cir. 1984)). But “counsel should be appointed where an indigent plaintiff with a potentially meritorious claim is not fully able to prosecute his or her own case in light of the overall complexity of the case.” Shifflett v. Korszniak, 934 F.3d 356, 367 (3d Cir. 2019).
The United States Court of Appeals for the Third Circuit has “outlined a two-step process” that the court should follow when deciding whether to ask an attorney if he or she will accept the responsibility of representing a pro se plaintiff. Houser v. Folino, 927 F.3d 693, 697 (3d Cir. 2019). First, as a threshold inquiry, the court must consider whether the plaintiff's case has some arguable merit in fact and law. Montgomery, 294 F.3d at 498-99. Second, if the plaintiff overcomes this threshold hurdle, the court should consider other factors including: (1) the plaintiff's ability to present his or her own case; (2) the complexity of the legal issues; (3) the degree to which factual investigation will be required and the plaintiff's ability to pursue such investigation; (4) the degree to which the case is likely to turn on credibility determinations; (5) whether the case will require testimony from expert witnesses; and (6) whether the plaintiff can attain and afford counsel on his or her own behalf. Parham v. Johnson, 126 F.3d 454, 457 (3d Cir. 1997). This list is not meant to be exhaustive. Tabron, 6 F.3d at 157; see also Houser, 927 F.3d at 700 (“We have always emphasized that the Tabron factors are only a guidepost for district courts in their exercise of the broad statutory discretion granted to them by Congress. They are not exhaustive, nor are they each always essential.”). Rather, the court must determine on a case-by-case basis whether the appointment of counsel is warranted. Tabron, 6 F.3d at 158.
Here, because, as set forth above, the complaint fails to state a claim upon which relief can be granted and because the Eleventh Amendment bars some of Lyons's claims, we cannot say that the case has some arguable merit in fact and law. Thus, Lyons does not meet the threshold requirement for the appointment of counsel.
V. Recommendations.
Based on the foregoing, it is recommended that the complaint be dismissed pursuant to 28 U.S.C. § 1915A because it fails to state a claim upon which relief may be granted and because and the Eleventh Amendment bars some of Lyons's claims. It is further recommended that the case be closed.
The Parties are further placed on notice that pursuant to Local Rule 72.3: 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. 16