Opinion
2:22-cv-928
09-08-2022
MACKENNETH ORTIZ, Plaintiff v. LEE ESTOCK, et al., Defendants.
REPORT AND RECOMMENDATION
PATRICIA L. DODGE, United States Magistrate Judge.
I. Recommendation
It is respectfully recommended that Plaintiff's Motion to Dismiss (ECF No. 19), as supplemented (ECF No. 29), which the Court construes as a motion to remand this action to state court, be denied.
II. Report
Plaintiff MacKenneth Ortiz, who is a state prisoner incarcerated at the State Correctional Institution at Houtzdale, Pennsylvania (“SCI Houtzdale”), commenced a civil rights complaint in the Court of Common Pleas of Indiana County in April 2021 in which he challenges the treatment he has received at the prison and contends that he was subjected to retaliation. He named as defendants Lee Estock, the Warden of SCI Pine Grove, where he was previously incarcerated, and Deputy Superintendent Yingling (together, the “DOC Defendants”), as well as Wellpath, a medical provider. On June 23, 2022, Wellpath removed the action to this Court on the basis of the federal question presented by Plaintiff's civil rights claims.
Plaintiff refers to this Defendant as “SCI P.N.G. Medical Dept. Admin. (Wellpath),” but Defendant indicates that it is properly identified as Wellpath.
On July 19, 2022, Plaintiff filed a motion to dismiss (ECF No. 19), which, based on its content, the Court construes as a motion for remand. On August 8, 2022, both Wellpath (ECF No. 22) and the DOC Defendants (ECF No. 23) filed responses to his motion. At the Court's direction, Wellpath supplemented its response on August 16, 2022 (ECF No. 27).
On September 2, 2022, Plaintiff filed a pleading entitled “Application to Withdraw Motion to Dismiss” (ECF No. 29). While it is difficult to interpret, this document appears to withdraw, in part, his “motion to dismiss.” It is possible that Plaintiff filed this pleading based upon Defendants' explanation that the removal to federal court based on the federal question presented in the complaint is not an improper “appeal” of his state court action as Plaintiff suggested in his motion to dismiss. In his most recent filing, Plaintiff continues to argue that removal was improper because of his contentions that there is no federal question, that Wellpath is not a municipality and that Wellpath's removal was not timely because he properly served this defendant in state court and took a default judgment against it. Therefore, the Court will treat the most recent motion as a supplement to his motion to dismiss.
Wellpath removed this action pursuant to 28 U.S.C. § 1441, which states that:
Except as otherwise expressly provided by Act of Congress, any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending....28 U.S.C. § 1441(a). The Court of Appeals for the Third Circuit has held that “[t]he party asserting jurisdiction bears the burden of showing that at all stages of the litigation the case is properly before the federal court.” Samuel-Bassett v. Kia Motors of America, Inc., 357 F.3d 392, 396 (3d Cir. 2004) (citation omitted). Thus, Wellpath bears the burden of demonstrating that the removal of this action was proper in all respects.
Wellpath asserts that removal is proper because the Complaint raises federal questions related to Plaintiff's medical care and retaliation, specifically, that his constitutional rights were violated when he was transferred to SCI Houtzdale in retaliation for applying for compassionate release during the COVID-19 pandemic. 28 U.S.C. § 1331. Wellpath is correct. See Castle v. Clymer, 15 F.Supp.2d 640, 660 (E.D. Pa. 1998) (although prisoners do not have a right to be placed in any particular prison, “prisoners may not be transferred from one institution to another for engaging in constitutionally protected activity.”) See also Allah v. Seiverling, 229 F.3d 220, 224-25 (3d Cir. 2000) (“[G]overnment actions, which standing alone do not violate the Constitution, may nonetheless be constitutional torts if motivated in substantial part by a desire to punish an individual for exercise of a constitutional right.”) Thus, the Complaint was properly removed based on a federal question.
Moreover, Wellpath is a proper defendant under 42 U.S.C. § 1983, the statute that provides “a method for vindicating federal rights elsewhere conferred by those parts of the United States Constitution and federal statutes that it describes.” Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979). Contrary to Plaintiff's contention, Section 1983 is not limited to “municipalities” but covers any “person” who acts “under color of state law” to deprive another of his constitutional rights. The Supreme Court has long held that “a physician employed by [a state] to provide medical services to state prison inmates, acted under color of state law for purposes of § 1983 when undertaking his duties in treating [the plaintiff's] injury.” West v. Atkins, 487 U.S. 42, 54 (1988).
Plaintiff did not cite Section 1983 in his Complaint, but he did refer to Defendants' denial of his constitutional rights. Thus, “because Plaintiff is seeking to vindicate his constitutional rights and because he does not have a cause of action directly under the Constitution of the United States, a liberal reading of the Complaint requires the court to construe it as one invoking the court's federal question jurisdiction pursuant to 42 U.S.C. § 1983.” Kontaxes v. Vernon, 2012 WL 6762020, at *2 (W.D. Pa. Nov. 23, 2012), report and recommendation adopted, 2013 WL 42417 (W.D. Pa. Jan. 3, 2013).
Wellpath further asserts that its removal of the case was timely because it was never properly served, although its counsel eventually was made aware of the lawsuit against it. Plaintiff contends that he properly served Wellpath.
Federal law provides that:
The notice of removal of a civil action or proceeding shall be filed within 30 days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based, or within 30 days after the service of summons upon the defendant if such initial pleading has then been filed in court and is not required to be served on the defendant, whichever period is shorter.28 U.S.C. § 1446(b)(1). The Supreme Court has held that the removal period “is triggered by simultaneous service of the summons and complaint, or receipt of the complaint ‘through service or otherwise,' after and apart from service of the summons, but not by mere receipt of the complaint unattended by any formal service.” Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 347-48 (1999). The dispositive question is whether a defendant was served with “formal process” prior to the date of removal, an issue governed by state law. See Cmiech v. Electrolux Home Prod., Inc., 520 F.Supp.2d 671, 673 (M.D. Pa. 2007); Zokaites Properties, LP v. La Mesa Racing, LLC, 2012 WL 3144127, at *12 (W.D. Pa. Aug. 1, 2012) (“Given the holding in Murphy Brothers, it is clear that ‘[a]n individual or entity named as a defendant is not obliged to engage in litigation unless notified of the action, and brought under a court's authority, by formal process.'”) (quoting Murphy Bros., 526 U.S. at 347).
Wellpath indicates that it became aware of this lawsuit on or about May 3, 2021, when a claims adjuster forwarded a copy of the Complaint, but that it was not properly served then or at any other time. Rather, Plaintiff indicated that he attempted to serve Wellpath on April 13, 2021 by sending regular mail to “SCI Pine Grove - Medical Dept., 189 Fyock Road, Indiana, PA 15701-6542.” (ECF No. 22 Ex. B.) The Indiana County court docket does not indicate that Wellpath was served at any time after April 13, 2021 by way of sheriff's return or any other document. (ECF No. 22 Ex. A.) Wellpath further notes that its counsel never filed an appearance with the court in Indiana County or took any other action which could have led to a waiver of service.
In Pennsylvania “original process shall be served within the Commonwealth only by the sheriff.” Pa. R. Civ. P. 400(a). See Infantino v. W. Wyoming Borough, 2013 WL 1345628, at *3 (M.D. Pa. Apr. 2, 2013) (service by a legal assistant satisfied the federal rule but not Pennsylvania rules). Moreover, as Wellpath notes, even if service by mail was permitted (which it contends is not true in this situation), it must be by a “form of mail requiring a receipt signed by the defendant or his authorized agent.” Pa. R. Civ. P. 403. Regular mail, without a signed receipt, is insufficient. See Liggett v. Borough of Brownsville, 2015 WL 2238605, at *4 (W.D. Pa. May 12, 2015) (noting that “Receipts evidencing delivery of the Complaint were not filed on the state docket of this matter.”) No receipt was ever filed in this case.
Plaintiff also argues that he took a default judgment against Wellpath in state court. But as Wellpath notes, the state court docket reflects that his attempts at obtaining a default judgment were unsuccessful. See ECF No. 22 Ex. A (noting that his multiple attempts at seeking a default judgment against Wellpath were denied as improper).
Because Wellpath was never properly served while the case was pending in state court, the time for removal never began to run and Wellpath's June 23, 2022 removal of the action to this Court was not untimely. Therefore, Plaintiff's motion to dismiss/remand should be denied.
Finally, with respect to Plaintiff's contention that Wellpath is improperly sending documents to him via Smart Communications, Plaintiff is advised that pursuant to DOC policy, Defendants are required to serve him through Smart Communications. Because this results in a slight delay in Plaintiff's receipt of mail from Defendants, the Court routinely allows additional time for his responses and Plaintiff may also file a motion seeking additional time if he takes the position that it is needed. Plaintiff's stated intention to reject mail from Defendants sent via Smart Communications is misguided and will be at his peril as this constitutes valid service. In the event that Plaintiff nonetheless proceeds to reject validly served pleadings and other documents from Defendants, he may not use his unilateral and improper rejection as a basis for relief or to oppose motions made by Defendants.
III. Conclusion
For the reasons stated above, it is respectfully recommended that Plaintiff's Motion to Dismiss (ECF No. 19), as supplemented (ECF No. 29), which the Court has construed as a motion to remand, be denied.
If Plaintiff wishes to challenge this Report and Recommendation, he must seek review by the district judge by filing objections by September 26, 2022. Failure to file timely objections will waive the right of appeal.