Opinion
1:23-CV-00205-SPB-RAL
05-23-2024
TYSJHON RAMONE MCCREARY, Plaintiff v. ERIE COUNTY PRISON, WARDEN KEVIN STUTTER, AND DEPUTY WARDEN MIKEY HALLMAN,[1] Defendants
SUSAN PARADISE BAXTER UNITED STATES DISTRICT JUDGE
REPORT AND RECOMMENDATION ON DEFENDANTS' MOTION TO DISMISS THE COMPLAINT ECF NO. 14
RICHARD A. LANZILLO CHIEF UNITED STATES MAGISTRATE JUDGE
I. Recommendation
It is respectfully recommended that Defendants' motion to dismiss the Complaint for failure to state a claim (ECF No. 14) be GRANTED.
IL Report
A. Introduction and Procedural History
Plaintiff Tysjhon Ramone McCreary filed this pro se civil rights action pursuant to 42 U.S.C. § 1983 against the Erie County Prison (“ECP”), ECP Warden Kevin Sutter, and ECP Deputy Warden Michael Holman. See ECF No. 9. The Complaint asserts claims arising from McCreary's ten-day confinement as a pretrial detainee in an ECP cell for nearly twenty-four hours a day. See id. McCreary contends that this confinement constituted cruel and unusual punishment and a denial of due process in violation of his Eighth and Fourteenth Amendment rights under the United States Constitution. See id. McCreary seeks injunctive relief and monetary damages. See id.
Defendants have filed a motion to dismiss the Complaint pursuant to Fed.R.Civ.P. 12(b)(6) and a brief in support of their motion. ECF No. 14 (motion), ECF No. 15 (brief). McCreary was directed to respond to Defendants' motion by March 25, 2024. See ECF No. 17. When no response was received by the deadline, the Court issued a “show cause” order directing McCreary to either explain his failure to respond or file his response by May 17, 2024. See ECF No. 19. As of the present date, McCreary has not filed a response to Defendants' motion or the Court's order. The undersigned will therefore issue this Report and Recommendation on Defendants' motion without the benefit of an opposition brief.
Defendants appended to their motion to dismiss three publicly available criminal dockets: CP-25-CR-0000353-2023, CP-25-CR-00003 54-2023, and CP-25-CR-0000355-2023. ECF Nos. 14-2-14-4.
B. Standard of Review
A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the legal sufficiency of the complaint. See Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993). In deciding a Rule 12(b)(6) motion to dismiss, the court must accept as true all well-pled factual allegations in the complaint and views them in a light most favorable to the plaintiff. See U.S. Express Lines Ltd. v. Higgins, 281 F.3d 383, 388 (3d Cir. 2002). The “court[] generally consider[s] only the allegations in the complaint, exhibits attached to the complaint, matters of public record, and documents that form the basis of a claim” when considering the motion to dismiss. Lum v. Bank of Am., 361 F.3d 217, 222 n.3 (3d Cir. 2004) (citing In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997)).
In making its determination under Rule 12(b)(6), the court is not opining on whether the plaintiff is likely to prevail on the merits; rather, the plaintiff must only present factual allegations sufficient “to raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007) (citing 5 C. Wright & A. Miller, Federal Practice, and Procedure § 1216, pp. 235-36 (3d ed. 2004)). See also Ashcroft v. Iqbal, 556 U.S. 662 (2009). Furthermore, a complaint should only be dismissed pursuant to Rule 12(b)(6) if it fails to allege “enough facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570 (rejecting the traditional Rule 12(b)(6) standard established in Conley v. Gibson, 355 U.S. 41, 78 (1957)).
While a complaint does not need detailed factual allegations to survive a motion to dismiss, a complaint must provide more than labels and conclusions. See Twombly, 550 U.S. at 555. A “formulaic recitation of the elements of a cause of action will not do.” Id. (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). Moreover, a court need not accept inferences drawn by a plaintiff if they are unsupported by the facts as explained in the complaint. See California Pub. Employee Ret. Sys. v. The Chubb Corp., 394 F.3d 126, 143 (3d Cir. 2004) (citing Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997)). Nor must the court accept legal conclusions disguised as factual allegations. See Twombly, 550 U.S. at 555; McTernan v. City of York, Pennsylvania, 577 F.3d 521, 531 (3d Cir. 2009) (“The tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.”). Put another way, in assessing a motion to dismiss, while the Court must view the factual allegations contained in the pleading at issue as true, the Court is “not compelled to accept unwarranted inferences, unsupported conclusions or legal conclusions disguised as factual allegations.” Baraka v. McGreevey, 481 F.3d 187, 211 (3d Cir. 2007). Expounding on the Twombly/Iqbal line of cases, the Third Circuit has articulated the following three-step approach:
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.”Burtch v. Milberg Factors, Inc.,662 F.3d 212, 221 (3d Cir. 2011) (quoting Santiago v. Warminster Twp., 629 F.3d 121, 130 (3d Cir. 2010)). This determination is “a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Iqbal, 556 U.S. at 679.
Finally, because McCreary is proceeding pro se, the complaint must be held to “less stringent standards than formal pleadings drafted by lawyers.” Haines v. Kerner, 404 U.S. 519, 520-521 (1972). If the court can reasonably read a pro se litigant's complaint to state a valid claim upon which relief could be granted, it should do so despite the litigant's failure to cite proper legal authority, confusion of legal theories, poor syntax, and sentence construction, or unfamiliarity with pleading requirements. See Boag v. MacDougall, 454 U.S. 364 (1982); United States ex rel. Montgomery v. Bierley, 141 F.2d 552, 555 (3d Cir. 1969).
C. Material Facts
The relevant factual allegations of McCreary's Complaint are few and, for purposes of the pending motion, accepted as true. On January 23, 2023, McCreary entered ECP as a pretrial detainee. From 11:00 p.m. that day until 6:30 p.m. on February 3, 2023, McCreary “was quarantined and locke[d] in a cell” for twenty-three hours and forty minutes a day. ECF No. 9, at 4. As a result, he suffered “mental and emotional distress, and soreness.” Id. at 5.
D. Discussion
Defendants raise the following arguments in support of their motion to dismiss the Complaint: (1) the Complaint does not comply with the pleading requirements of Fed. R. Civ. P. 8; (2) the facts alleged do not support cruel and unusual conditions of confinement; (3) McCreary does not have a constitutional right to a particular housing setting or to fde a grievance; (4) ECP is not a “person” for purposes of § 1983 liability; (5) the facts alleged are insufficient to demonstrate Sutter or Holman's personal involvement in McCreary's alleged constitutional injuries; (6) McCreary's request for a specific monetary sum violates Local Rule of Civil Procedure 8; and (7) and the Complaint fails to demonstrate McCreary's entitlement to injunctive relief. The undersigned will address these arguments in turn.
Defendants also argue that McCreary is not entitled to declaratory relief and the facts alleged fail to establish a viable state law claim of intentional infliction of emotional distress (“IIED”). ECF No. 14, p. 11. However, the Complaint does not appear to request declaratory relief or to assert an 11ED claim. See ECF No. 9. Nevertheless, Defendants correctly assert that the allegations of the Complaint fail to state an IIED claim. To state an IIED claim, McCreary must allege facts to support that the Defendants' conduct was “(1) extreme and outrageous (2) intentional or reckless, and (3) caused severe emotional distress.” Shumate v. Twin Tier Hosp., LLC, 655 F.Supp.2d 521, 541 (M.D. Pa. 2009) (citing Livingston v. Borough of Edgewood, 2008 WL 5101478 at *6 (W.D. Pa. 2008) (citing Hargraves v. City of Philadelphia, 2007 WL 1276937 (E.D. Pa. April 26, 2007)). Here, the Complaint is devoid of allegations relating to Holman and Sutter's conduct. McCreary therefore fails to plead the requisite elements of an IIED claim.
i. The Complaint is minimally sufficient to satisfy Fed.R.Civ.P. 8.
Federal Rule of Civil Procedure 8(a)(2) requires that “a complaint contain ‘a short and plain statement of the claim showing that the pleader is entitled to relief,' in order to give the defendants fair notice of what the . .. claim is and the grounds on which it rests.” Twombly, 550 U.S. at 555 (2007). Defendants argue that the Complaint contravenes this directive because it “fails to set forth any facts concerning the Defendants' involvement in the alleged constitutional violations.” ECF No. 15, p. 5. Defendants' challenge to the pleading is more appropriately considered as challenging the sufficiency of the factual allegations to state a viable cause of action against any Defendant rather than an assertion that the Complaint is incomprehensible. Indeed, though minimal, the allegations and claims set forth in the Complaint are comprehensible, and there is little doubt as to the basis for his claims. As such, the Court should decline to dismiss the Complaint pursuant to Fed.R.Civ.P. 8.
it The claims against Erie County Prison should be dismissed.
McCreary cannot assert a cause of action against ECP for allegedly violating his constitutional rights. This is because a prison “is not a ‘person' and therefore, cannot be held liable for constitutional violations through § 1983.” Scutella v. Erie Cnty. Prison, 2020 WL 4904587, at *6 (W.D. Pa. Aug. 20, 2020). See also Regan v. Upper Darby Twp., 2009 WL 650384 (E.D. Pa. 2009), aff'd 363 Fed.Appx. 917 (3d Cir. 2010) (listing cases); Lenhart v. Pennsylvania, 528 Fed.Appx. 111, 114 (3d Cir. 2013) (concluding that district court properly dismissed claims against county prison because even though “[a] local governmental agency may be a ‘person' for purposes of § 1983 liability [, the county prison] is not a person capable of being sued within the meaning of § 1983”) (internal citations omitted). The claims asserted against ECP should be dismissed with prejudice.
iii. The facts alleged do not support that McCreary was subjected to cruel and unusual punishment.
McCreary alleges that the ten days he spent quarantined in his cell amounted to cruel and unusual punishment. McCreary was a pretrial detainee at the time of his Complaint. See ECF No. 9, at 4. Accordingly, McCreary's claims are evaluated under the Due Process Clause of the Fourteenth Amendment, which applies to pretrial detainees, as opposed to the Eighth Amendment, which applies to convicted inmates. See Edwards v. Northampton Cnty., 663 Fed.Appx. 132, 135 (3d Cir. 2016); Andrews v. Harper, 576 F.Supp.3d 305, 316 (W.D. Pa. 2021).
The Court may also take judicial notice of the publicly available dockets of McCreary's criminal proceedings, which confirm McCreary's designation as a pretrial detainee. See ECF Nos. 14-2-14-4.
Because the Eighth Amendment does not apply to McCreary's pretrial detention at ECP, his Eighth Amendment claim should be dismissed with prejudice.
“[U]nder the Due Process Clause, a detainee may not be punished prior to an adjudication of guilt in accordance with due process of law.” Bell v. Wolfish, 441 U.S. 520, 535-36 (1979). “[A] particular measure amounts to punishment when there is a showing of express intent to punish on the part of detention facility officials, when the restriction or condition is not rationally related to a legitimate non-punitive government purpose, or when the restriction is excessive in light of that purpose.” Andrews v. Harper, 576 F.Supp.3d 305, 312 (W.D. Pa. 2021) (quoting Stevenson v. Carroll, 495 F.3d 62, 68 (3d Cir. 2007) (citing Rapier v. Harris, 172 F.3d 999, 1005 (7th Cir. 1999)).
McCreary avers that for the first ten days of his pre-trial detention at ECP, specifically from 11:00 PM on January 23 to 6:30 PM on February 3, 2023, he was “quarantined and locke[d] in a cell for” twenty-three hours and forty minutes a day. ECF No. 9, at 4-5. The Complaint does not elaborate upon this assertion.
Defendants argue that quarantining McCreary “was a reasonable step taken by the prison to address the COVID-19 pandemic within it's [sic] institution and undoubtedly served the [sic] Mr. McCreary's best interests.” ECF No. 15, at 7. Defendants go on to explain how the quarantine was necessary to prevent the spread of the COVID-19 virus in the prison. The Court agrees that a 10-day quarantine upon new detainees as a precaution to limit the spread of an infectious virus would constitute a legitimate and reasonable “non-punitive government purpose.” However, McCreary's reference to “quarantine” alone does not necessarily translate to a COVID-19 precaution, and the Complaint includes no other factual allegations from which the Court can assume that it was. Adopting Defendants' factual representations would thus require the Court to “go beyond the facts alleged in the Complaint,” which it may not do when ruling on a motion to dismiss. In re Burlington, 114 F.3d at 1424-25 (“As far as we can see, the only source of information before the district court that could have provided a basis for the conclusion it reached was defendants' brief in support of their motion to dismiss. . . . However, since the district court was ruling on a motion to dismiss, it was not permitted to go beyond the facts alleged in the Complaint and the documents on which the claims made therein were based.”). See also Happel v. Bishop, 2024 WL 1508561, at *9 (W.D. Pa. Feb. 22, 2024), report and recommendation adopted, 2024 WL 1003902 (W.D. Pa. Mar. 8, 2024). Nevertheless, McCreary's claim fails for a related reason that does not require the Court to go beyond the face of the Complaint. The Complaint fails because it alleges no facts from which the Court can infer that the quarantine conditions of which McCreary complains were punitive, arbitrary, or excessive. Accordingly, McCreary's allegations fail to demonstrate that the ten-day quarantine he underwent as a pretrial detainee at ECP amounted to punishment in violation of his Fourteenth Amendment rights.
The Complaint also fails to demonstrate a violation of McCreary's procedural due process rights. To establish such a violation, McCreary must plausibly plead that “(1) he was deprived of an individual interest that is encompassed within the Fourteenth Amendment's protection of ‘life, liberty, or property,' and (2) the procedures available to him did not provide ‘due process of law.'” Disco v. Thompson, 2020 WL 3980655, at *4 (W.D. Pa. Apr. 9, 2020), report and recommendation adopted, 2020 WL 2059745 (W.D. Pa. Apr. 29, 2020) (quoting Halsey v. Pfeiffer, 750 F.3d 273, 291 (3d Cir. 2014) (citation omitted)). “Protected liberty or property interests generally arise either from the Due Process Clause or from state-created statutory entitlement.” Shoats v. Horn, 213 F.3d 140, 143 (3d Cir. 2000). McCreary does not have a property right to or liberty interest in any particular housing assignment. See Olim v. Wakinekona, 461 U.S. 238, 245 (1983); Meachum v. Fano, 427 U.S. 214, 225 (1976); Montanye v. Haynes, 427 U.S. 236, 242 (1976); Wilkinson v. Austin, 545 U.S. 209, 221-22 (2005); Williams v. Sorber, 2024 WL 2111935 at *8 (E.D. Pa. May 10, 2024). Nor does McCreary allege facts to support that his pretrial detention was “imposed contrary to the mandates of procedural due process,” Postie v. Adams, 2022 WL 1126052, at *8 (W.D. Pa. Jan. 13, 2022) (quoting United States v. Delker, 757 F.2d 1390, 1397 (3d Cir. 1985)), report and recommendation adopted, 2022 WL 969598 (W.D. Pa. Mar. 31, 2022). And a 10-day quarantine is also too short in duration to support a liberty interest triggering due process protections. Williams, 2024 WL 2111935 at *8. Absent factual allegations sufficient to support a property or liberty interest, McCreary's Fourteenth Amendment due process claim fails as a matter of law and must be dismissed.
Defendants also argue that McCreary cannot maintain a due process claim based on Holman's alleged refusal to provide McCreary with a grievance. See ECF No. 15, p. 8. McCreary does not assert such a cause of action. Rather, McCreary writes that Holman “denied [him] a grievance” merely in response to the form Complaint's question of whether he exhausted his administrative remedies. ECF No. 9, p. 9. That said, Defendants are correct that no such claim can be brought under Section 1983. Indeed, though a prison official's failure to provide an inmate with a grievance form may excuse the inmate's failure to exhaust administrative remedies, “the state creation of [a grievance] procedure does not create any federal constitutional rights.” Wilson v. Horn, 971 F.Supp. 943, 947 (E.D. Pa. 1997), affd, 142 F.3d 430 (3d Cir. 1998) (alteration added); see Burnside v. Moser, 138 Fed.Appx. 414, 416 (3d Cir. 2005) (“Inmates do not have a constitutionally protected right to the prison grievance process.”) (citation omitted). Thus, to the extent McCreary intended to assert a constitutional claim based on Holman's alleged denial of his right to grieve, this claim should also be dismissed with prejudice.
iv. McCreary has not alleged facts to support Sutter or Holman's requisite personal involvement in his alleged constitutional injuries.
Even if the allegations sufficed to state a constitutional violation, Defendants correctly argue that McCreary has failed to demonstrate Sutter and Holman's personal involvement in any unconstitutional conduct. In a Section 1983 action, “a plaintiff must show that each and every defendant was ‘personally] involve[d]' in depriving him of his rights.” Kirk v. Roan, 2006 WL 2645154, at *3 (M.D. Pa. 2006) (quoting Evancho v. Fischer, 423 F.3d 347, 353 (3d Cir. 2006)). In the absence of specific allegations that a defendant played a role in depriving the plaintiff of a constitutional right, dismissal is appropriate. See, e.g, Mearin v. Swartz, 951 F.Supp.2d 776, 781-82 (W.D. Pa. 2013) (dismissing claims pursuant to Rule 12(b)(6) because the plaintiffs had failed to set forth sufficient facts to establish that certain defendants had played an affirmative part in the alleged Eighth Amendment violation).
These principles apply to supervisory officials such as Warden Sutter and Dep. Warden Holman. See, e.g., Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1998) (noting that liability for supervisory officials must still be based on “personal involvement in the alleged wrongs”); Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009). There are “two general ways in which a supervisor-defendant may be liable for unconstitutional acts undertaken by subordinates.” Barkes v. First Corr. Med., Inc., 766 F.3d 307, 316 (3d Cir. 2014), reversed on other grounds by Taylor v. Barkes, 575 U.S. 822 (2015). First, a supervisor may be liable for unconstitutional acts undertaken by subordinates if the supervisor, “with deliberate indifference to the consequences, established and maintained a policy, practice or custom which directly caused the constitutional harm.” Id. (quoting A.M. ex rel. J.M.K. v. Luzerne Cty. Juvenile Det. Ctr., 372 F.3d 572, 586 (3d Cir. 2004). In this instance, a defendant's liability “cannot be predicated solely on the operation of respondeat superior.” Rode, 845 F.2d at 1207. Also, while a supervisor cannot encourage constitutional violations, “a supervising public official has [no] affirmative constitutional duty to supervise and discipline so as to prevent violations of constitutional rights by his or her subordinates.” Chinchello v. Fenton, 805 F.2d 126, 133 (3d Cir. 1986); Brown v. Grabowski, 922 F.2d 1097, 1120 (3d Cir. 1990). “Second, a supervisor may be personally liable under Section 1983 if they participated in violating the plaintiffs rights, directed others to violate them, or, as the person in charge, had knowledge of and acquiesced in the subordinate's unconstitutional conduct.” Barkes, 766 F.3d at 316.
The Complaint does not attribute any conduct to Sutter or Holman, let alone mention either Defendant by name or title. McCreary thus appears to base their liability strictly upon their supervisory positions. But ‘“mere hypothesis' that an official is personally involved in complained-of conduct ‘simply because of his [supervisory position]' is an insufficient basis for finding Section 1983 liability.” Evancho, 423 F.3d at 354. Equally insufficient are generalized allegations that “a supervisory state actor is ‘in charge of or ‘responsible for' an office or facility.” Carroll v. Delaware Cnty. of Pennsylvania, 2023 WL 2868020, at *19 (E.D. Pa. Apr. 10, 2023) (citing Saisi v. Murray, 822 Fed.Appx. 47, 48 (3d Cir. 2020) (per curiam) (quoting Evancho, 423 F.3d at 354) (“Saisi asserted that some defendants were ‘in charge of agencies that allowed this to happen,' and that liability stemmed merely from defendants' ‘belief that their conduct would be ‘tolerated.' However, a director cannot be held liable ‘simply because of his position as the head of the [agency].”')). The Complaint therefore fails to support the requisite personal involvement of Holman or Sutter to maintain a cause of action against either pursuant to § 1983.
v. McCreary's request for a specific monetary sum violates Local Rule of Civil Procedure 8, and his request for injunctive relief is moot.
Lastly, Defendants challenge McCreary's request for monetary and injunctive relief. McCreary requests $100,000 in damages “for [his] injuries.” ECF No. 9, at 5. Defendants argue that his request for a specific sum must be stricken from the Complaint based on Local Rule 8 of the Local Rules of Civil Procedure. See ECF No. 15, p. 10. Defendants are correct.
Local Rule 8 states that “[n]o party shall set forth in a pleading originally filed with this Court a specific dollar amount of unliquidated damages” except in certain circumstances which do not apply in the instant case. See LCvR 8. McCreary's demand for specific unliquidated damages must therefore be stricken. See, e.g., Massey v. Holman, 2019 WL 3997845, at *7 (W.D. Pa. July 23, 2019) (citing Ramsier v. Allegheny County, 2016 WL 890603, at *10 (W.D. Pa. Mar. 9, 2016) (invoking Local Rule 8 to strike plaintiffs demand for unliquidated damages)), report and recommendation adopted, 2019 WL 3997280 (W.D. Pa. Aug. 23, 2019).
Defendants also take issue with McCreary's request for injunctive relief, to wit: that the Court direct ECP to stop “any Quarantine Protocols” and to adhere to “state statute when allowing inmates from their cells.” ECF No. 9, at 5. As Defendants note, McCreary is no longer detained at ECP as his criminal docket reflects that the Court of Common Pleas of Erie County granted him parole on January 29, 2024. See ECF Nos. 14-2-14-4. This fact renders his request for injunctive relief moot. Additionally, as a pro se plaintiff, McCreary may not seek redress for the harms allegedly suffered by other inmates because he may not “represent another party pro se.” Itiowe v. Trentonian, 620 Fed.Appx. 65, 68 (3d Cir. 2015) (citing Osei-Afriyie v. Med. Coll, of Pa., 937 F.2d 876. 883 (3d Cir. 1991)). He therefore cannot request injunctive relief on behalf of the current individuals incarcerated at ECP. Accordingly, the Court should also strike McCreary's request for injunctive relief.
E. Leave to Amend
The Third Circuit has instructed that if a complaint is vulnerable to dismissal for failure to state a claim, the Court should 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). The Court may deny leave to amend where there is “undue delay, bad faith[,] or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, [or] futility of the amendment.” Foman v. Davis, 371 U.S. 178, 182 (1962). And though “the grant or denial of an opportunity to amend is within the discretion of the District Court,” it may not “outright refus[e] to grant the leave without any justifying reason appearing for the denial.” Id. These instructions are equally applicable to pro se litigants and those represented by counsel. Alston v. Parker, 363 F.3d 229, 235 (3d Cir. 2004).
In this case, it would be futile to allow McCreary to amend any claim against the ECP or his procedural due process claim. These claims should therefore be dismissed with prejudice. Although it appears unlikely, it is possible that McCreary may be able to allege additional facts to support his Fourteenth Amendment conditions of confinement claim. Accordingly, this claim should be dismissed without prejudice and with leave to file an amended complaint within fourteen days of the Court's order adopting this recommendation. If McCreary fails to file an amended complaint within this time, this claim should be dismissed with prejudice.
III. Conclusion
For the foregoing reasons, it is respectfully recommended that Defendants' motion to dismiss the Complaint for failure to state a claim (ECF No. 14) be GRANTED. It is further recommended that the claims against ECP and the Fourteenth Amendment due process claim be dismissed with prejudice; McCreary's requests for a sum certain and injunctive relief be stricken; and his Fourteenth Amendment conditions of confinement claim be dismissed without prejudice and with leave to amend. If McCreary fails to file an amended complaint within fourteen days of the Court's order adopting this recommendation, McCreary's Fourteenth Amendment claim should be dismissed with prejudice.
IV. Notice
In accordance with 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72, the parties may seek review by the district court by filing Objections to the Report and Recommendation within fourteen (14) days of the filing of this Report and Recommendation. Any party opposing the objections shall have fourteen (14) days from the date of service of objections to respond thereto. See Fed.R.Civ.P. 72(b)(2). Failure to file timely objections may waive appellate rights. See Brightwell v. Lehman, 637 F.3d 187, 194 n.7 (3d Cir. 2011); Nara v. Frank, 488 F.3d 187 (3d Cir. 2007).