Opinion
2:23-CV-01710-CRE
10-13-2023
MISTER MITCHELL, Plaintiff, v. ALLEGHENY COUNTY JAIL, Defendant,
REPORT AND RECOMMENDATION
Cynthia Reed Eddy, United States Magistrate Judge.
I. RECOMMENDATION
For the reasons that follow, it is respectfully recommended that Plaintiff's complaint be dismissed pursuant to 28 U.S.C. §1915(a) without prejudice to refile consistent with this Report and Recommendation.
II. REPORT
Plaintiff's current lawsuit complains of his incarceration at Allegheny County Jail in Pennsylvania. He claims that in August 2021 while incarcerated, unnamed Corrections Officers deprived him of food on an unspecified number of occasions (ECF No. 1-2 at p. 6); that unnamed Corrections Officers ripped his mail on one occasion (ECF No. 1-2 at p. 6); and that unnamed Corrections Officers called him unspecified foul names (ECF No. 1-2 at p. 5). Plaintiff claims he suffered “deliberate indifference” and “mental anguish” and seeks damages in the amount of $100,000. Plaintiff only names Allegheny County Jail as a Defendant in this suit.
Plaintiff is proceeding pro se and as such, he is entitled to liberal construction of his submissions in federal court. This means that the Court must liberally construe the factual allegations of the complaint because pro se pleadings, “however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.” Erikson v. Pardus, 551 U.S. 89, 94 (2007) (internal quotation omitted); Haines v. Kerner, 404 U.S. 519, 520 (1972). In addition, the court should “‘apply the applicable law, irrespective of whether a pro se litigant has mentioned it by name.'” Higgins v. Beyer, 293 F.3d 683, 688 (3d Cir. 2002) (quoting Holley v. Dep't of Veterans Affairs, 165 F.3d 244, 247-48 (3d Cir. 1999)). However, pro se litigants are not free to ignore the Federal Rules of Civil Procedure. Pruden v. Long, Civ. A. No. 3:CV-06-2007, 2006 WL 3325439, *1 (M.D. Pa. Oct. 24, 2006).
Due to the liberal construction afforded to pro se litigants, the Court will construe Plaintiff's complaint as setting forth the following claims: (1) an Eighth or Fourteenth Amendment claim pursuant to 42 U.S.C. § 1983 for being denied meals; (2) a First Amendment claim pursuant to 42 U.S.C. § 1983 for destroying his mail on one occasion; and (3) a 42 U.S.C. § 1983 claim for verbal harassment.
It is not clear from Plaintiff's complaint whether during his incarceration at ACJ he was a pretrial detainee or was convicted person serving a sentence.
Pursuant to 28 U.S.C. §1915(a), Plaintiff requested leave to proceed in forma pauperis. It is recommended that he be granted such status. Thus, his allegations must be reviewed in accordance with the directives provided in 28 U.S.C. §1915(e). Section 1915(e)(2) requires the federal courts to review complaints filed by persons who are proceeding in forma pauperis and to dismiss, at any time, any action that is frivolous or malicious, fails to state a claim on which relief may be granted, or seeks monetary relief against a defendant who is immune from such relief. 28 U.S.C. §1915(e)(2)(B). “[A] complaint.. .is frivolous where it lacks an arguable basis either in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989). Thus, under Section 1915(e)(2)(B), courts are “authorized to dismiss a claim as frivolous where ‘it is based on an indisputable meritless legal theory or where the factual contentions are clearly baseless.'” O'Neal v. Remus, No. 0914661, 2010 WL 1463011, at *1 (E.D. Mich. Mar. 17, 2010) (quoting Price v. Heyrman, No. 06-C-632, 2007 WL 188971, at *1 (E.D. Wis. Jan. 22, 2007) (citing Neitzke, 490 U.S. at 327)).
Dismissal under Section 1915(e)(2) is “often made sua sponte prior to the issuance of process, so as to spare prospective defendants the inconvenience and expense of answering [frivolous] complaints[,]” Neitzke, 490 U.S. at 324, or complaints which fail to state a claim on which relief may be granted.
In determining whether a complaint fails to state a claim upon which relief may be granted for purposes of Section 1915(e)(2)(B), courts apply the same standard applied to motions to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure. D'Agostino v. CECOM RDEC, 436 Fed.Appx. 70, 72 (3d Cir. 2011) (citing Tourscher v. McCullough, 184 F.3d 236, 240 (3d Cir. 1999)). A complaint must be dismissed pursuant to Rule 12(b)(6) if it does not allege “enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 554, 556 (2007) (rejecting the traditional 12(b)(6) standard set forth in Conley v. Gibson, 355 U.S. 41, 45-46 (1957)); Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556). The United States Court of Appeals for the Third Circuit has expounded on this standard in light of its decision in Phillips v. Cnty. of Allegheny, 515 F.3d 224 (3d Cir. 2008) (construing Twombly in a civil rights context), and the Supreme Court's decision in Iqbal:
After Iqbal, it is clear that conclusory or “bare-bones” allegations will no longer survive a motion to dismiss: “threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 129 S.Ct. at 1949. To prevent dismissal, all civil complaints must now set out “sufficient factual
matter” to show that the claim is facially plausible. This then “allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. at 1948. The Supreme Court's ruling in Iqbal emphasizes that a plaintiff must show that the allegations of his or her complaints are plausible. See Id. at 194950; see also Twombly, 505 U.S. at 555, & n. 3.Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009). In making this determination, the court must accept as true all allegations of the complaint and all reasonable factual inferences must be viewed in the light most favorable to the plaintiff. Angelastro v. Prudential-Bache Sec., Inc., 764 F.2d 939, 944 (3d Cir. 1985). “To the extent that a complaint filed in forma pauperis which fails to state a claim lacks even an arguable basis in law, Rule 12(b)(6) and §1915([e]) both counsel dismissal.” Neitzke, 490 U.S. at 328 (footnote omitted).
Claims against Allegheny County Jail
At the outset, Plaintiff only names Allegheny County Jail as a Defendant for his alleged civil rights violations. To state a viable claim under Section 1983, a plaintiff must plead: (1) that the conduct complained of was committed by a person acting under color of state law; and (2) the conduct deprived plaintiff of a right, privilege or immunity secured by the Constitution of the laws of the United States. 42 U.S.C. § 1983; Gomez v. Toledo, 446 U.S. 635, 638 (1980). It is well-established that a jail or prison is not a “person” subject to suit under 42 U.S.C. § 1983 and therefore, it is respectfully recommended that the claims against Allegheny County Jail should be dismissed with prejudice, as amendment would be futile. Fischer v. Cahill, 474 F.2d 991, 992 (3d Cir. 1973); accord Edwards v. Northampton Cnty., 663 Fed.Appx. 132, 136 (3d Cir. 2016) (unpublished); Crawford v. McMillan, 660 Fed.Appx. 113, 116 (3d Cir. 2016) (unpublished).
Meal Deprivation
Turning to the substance of Plaintiff's complaint, he alleges that on an unspecified number of occasions he was deprived meals during August 2021 and the Court will construe this as an Eighth or Fourteenth Amendment claim. The “deprivation of a single meal does not rise to the level of an Eighth Amendment violation” and “only a substantial deprivation of food to a prisoner” rises to the level of a constitutional violation. Rieco v. Moran, 633 Fed.Appx. 76 (3d Cir. 2015), at *1 (quoting Lindsey v. O'Connor, 327 Fed.Appx. 319, 321 (3d Cir. 2009)). Because it is unclear from the complaint whether Plaintiff was deprived food on one occasion, or was subjected to a “substantial” deprivation of food during August 2021, his complaint fails to state a claim upon which relief can be granted and it is respectfully recommended that this claim be dismissed without prejudice to allow him to amend his complaint to add sufficient factual specificity of his claims and name the proper defendants who engaged in the alleged food deprivation.
If Plaintiff does not know the identity of the corrections officials who allegedly deprived him of meals, he may add “John Doe” defendants as more fully set forth herein.
Destroying Mail
Plaintiff alleges that on one occasion an unspecified Corrections Officer destroyed an unspecified piece of mail. To the extent that this can be construed as a free speech claim under the First Amendment, “a single instance of damaged or withheld mail does not constitute a First Amendment violation.” Alexander v. Gennarini, 144 Fed.Appx. 924, 926 (3d Cir. 2005) (unpublished) (citing Bieregu v. Reno, 59 F.3d 1445, 1452 (3d Cir. 1995), overruled on other grounds, 518 U.S. 343, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996)). Accordingly, it is respectfully recommended that Plaintiff's claim for destroyed mail be dismissed with prejudice as amendment would be futile.
Verbal Harassment
Lastly, Plaintiff alleges that an unnamed Corrections Officers called him unspecified foul names. Verbal harassment, name-calling and use of sexually explicit or offensive language by corrections officers and unaccompanied by any other injury are not constitutional violations. Sears v. McCoy, 815 Fed.Appx. 668, 670 (3d Cir. 2020) (unpublished) (affirming prescreen dismissal of constitutional claims of verbal harassment). Accordingly, it is respectfully recommended that Plaintiff's claim for calling him foul names be dismissed with prejudice as amendment would be futile.
Leave to Amend
Courts must provide leave to amend a complaint where civil rights claims are merely factually deficient. See Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002). However, a court need not provide leave to amend a complaint where amendment would be futile, meaning that the complaint as amended would fail to state a claim upon which relief could be granted. In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1434 (3d Cir. 1997). Based on the foregoing, the Court finds that Plaintiff should be permitted to amend his Complaint to add the proper Defendants and adequately support his Eighth or Fourteenth Amendment claim for withheld meals with enough factual specificity to adhere to the standards set forth in this recommendation. It is further respectfully recommended that Plaintiff not be granted leave to amend his claims for destroyed mail and verbal harassment, as amendment would be futile.
III. CONCLUSION
For the foregoing reasons, it is respectfully recommended that Plaintiff's complaint be dismissed for failure to state a claim and that he be granted leave to amend his complaint to include the proper defendants and to include adequate factual specificity regarding his claim for withheld meals.
Plaintiff is permitted to file Objections to this Report and Recommendation to the assigned United States District Judge. In accordance with 28 U.S.C. § 636(b), Fed.R.Civ.P. 6(d) and 72(b)(2), and LCvR 72.D.2, Plaintiff, because he is a non-electronically registered party, must file objections to this Report and Recommendation by November 3, 2023. Plaintiff is cautioned that failure to file Objections within this timeframe “will waive the right to appeal.” Brightwell v. Lehman, 637 F.3d 187, 193 n. 7 (3d Cir. 2011).
Respectfully submitted:
Hon. William S. Stickman IV United States District Judge
INSTRUCTIONS FOR FILING AMENDED COMPLAINT
A. Caption and Heading
The caption must include the name of the court, the parties, their capacities (i.e., whether they are being sued in their individual or representative (official) capacity), and the title of the pleading (i.e., Amended Complaint). Plaintiff must place his full name at the top left of the amended complaint and also list the names of each individual defendant. Plaintiff must name as defendants only those persons who are responsible for the alleged constitutional violation(s).
Plaintiff should only name defendants who had personal involvement in the alleged wrongdoing. See Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988) (“A defendant in a civil rights action must have personal involvement in the alleged wrongs.”). If Plaintiff is unaware of a defendant's name, then he may list that defendant as a John/Jane Doe but shall provide the Court with enough specificity to adequately identity that individual for service purposes.
B. Parties
As the person initiating the lawsuit, Plaintiff must identify himself as such. Also, for each defendant named in the amended complaint, Plaintiff should that list that defendant's current address and description of employment (i.e., Secretary, Superintendent, Corrections Officer, Grievance Officer, etc.).
C. Jurisdiction
Because federal court is a court of limited jurisdiction, Plaintiff must inform the Court why the case should be heard in federal court rather than in state court or some other forum. If Plaintiff's action is generally one for a violation of civil rights, 42 U.S.C. § 1983 will normally be the basis for the claim. In order for Plaintiff's action to be heard in federal court under Section 1983, he must be able to show that the defendant(s), at the time of the claims alleged in the amended complaint, were acting under the authority or color of state law.
D. Statement of Claim
This is the time to present the facts of the case: what happened, where it happened, when it happened, how it happened, and who was involved. In this section, Plaintiff should write a summary of the facts relevant to this lawsuit. Additionally, any document referenced to in this section must be cited as an exhibit and attached at the end of the amended complaint.
In this section, Plaintiff must provide specific details of precisely how his civil rights were allegedly violated. He should note that, in civil rights cases, more than conclusory and vague allegations are required to state a cause of action under Section 1983. Plaintiff should clearly describe how each named defendant is involved in the alleged constitutional violation(s). Plaintiff should not include legal argument in his amended complaint. Citations to case law and other statutes are not appropriate in the complaint, but rather may be included in a response to a dispositive motion or at the time of trial. However, Plaintiff should be specific about the particulars of the event, each defendant's misconduct, and how such misconduct resulted in a violation or denial of the civil right at issue.
Where the amended complaint includes more than one incident, Plaintiff should clearly distinguish between them by preparing a separate description - usually a paragraph - for each incident. Each incident should be identified as a separate count, and each count must include appropriate facts and evidence in support of the claims made in the count. Each incident must be clearly and specifically described; it should include the relevant time, date. and location. Each incident description also should clearly identify the relevant defendant and what that defendant's role was in the incident. Additionally, the amended complaint should set forth factual allegations that, taken together, satisfy the elements of the cause of action.
Plaintiff should also note that courts have consistently held that a “prisoner's allegations of verbal harassment, unaccompanied by another injury, are not cognizable under § 1983.” Sears v. McCoy, 815 Fed.Appx. 668, 670 (3d Cir. 2020) (citing McBride v. Deer, 240 F.3d 1287, 1291 n.3 (10th Cir. 2001); DeWalt v. Carter, 224 F.3d 607, 612 (7th Cir. 2000); McFadden v. Lucas, 713 F.2d 143, 146 (5th Cir. 1983) (explaining that mere threatening language and gestures of a custodial officer are not constitutional violations).
As Plaintiff's second time to amend his complaint, he is cautioned that the opportunity to file an amended complaint is not an invitation to enlarge the lawsuit by filing new allegations not related to the allegations in the original complaint or by adding defendants not related to the allegations in the original complaint. Plaintiff is again cautioned that inclusion of new allegations and claims unrelated to those set forth in the Amended Complaint will be considered a failure to comply with an Order of Court and will result in the dismissal of the Second Amended Complaint.
E. Injury
Plaintiff must state as specifically as possible the actual injury suffered from the action of the defendants that resulted in the alleged civil rights violation. Simply stating that his civil rights have been violated is insufficient.
F. Request for Relief
Plaintiff must describe for the Court the relief he is seeking as a result of this lawsuit. The relief requested must be related specifically to the injury suffered. However, Plaintiff should be aware that 42 U.S.C. § 1997e(e) limits a prisoner's ability to pursue a federal civil action for mental or emotional injuries suffered while in custody.
G. Exhaustion of Administrative Remedies
Plaintiff should be aware that under 42 U.S.C. § 1997e(a), he must fully exhaust all available remedies that are available to him before pursuing a civil rights complaint concerning prison conditions.
H. Previous Lawsuits
Plaintiff must alert the Court to any other case in which he was a party that may be connected with the case he is now filing. Plaintiff should inform the Court of any and all previously filed cases that include some of the same facts and events he relies on for this case.
I. Declaration Under Penalty of Perjury
Federal Rule of Civil Procedure 11 provides that every pleading, written motion, and other paper must be signed by an individual attorney of record or by the pro se party. Therefore, Plaintiff must sign his amended complaint and when doing so he is making a declaration under law to the Court that everything in the amended complaint is true.