Opinion
Civil Action No. 20-426
07-14-2020
HASAN SHAREEF, Plaintiff, v. JUDGE WILLIAM O'DONNELL, OFFICER BRIAN PALKO, DA TERRY SCHULTZ, CO WALTEMIRE, CAPTAIN MOORE, SGT. BLUMMING, WARDEN SNEDEN, MICHAEL SCUILLO, JEFFRETY KENGERSKI, MARK BOWMAN, MARK BATISER, STATE POLICE IN BUTLER, CAPTAIN ZENTS, SGT. WAGNER, SGT. WATIMERE, WARDEN DEMORE, ASST. WARDEN FEMALE, Defendants.
District Judge J. Nicholas Ranjan
REPORT AND RECOMMENDATION
I. RECOMMENDATION
For the following reasons, it is respectfully recommended that Plaintiff's Complaint (ECF Nos. 4, 4-1 & 4-2) be dismissed with prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) & (iii) and 28 U.S.C. § 1915A(b)(1) & (2).
II. REPORT
Plaintiff Hasan Shareef ("Plaintiff") is a state prisoner currently in the custody of the Pennsylvania Department of Corrections and confined at SCI-Forest. He initiated this action by filing a Motion for Leave to Proceed in forma pauperis, which was granted on April 3, 2020. (ECF Nos. 1 & 3.) His Complaint, filed pursuant to 42 U.S.C. § 1983, was docketed that same day. (ECF No. 4.) On April 30, 2020, Plaintiff moved to voluntarily withdraw this case. (ECF No. 10.) As a result, the case was closed by Order dated May 1, 2020. (ECF No. 11.) On May 13, 2020, however, Plaintiff moved to reopen this case. (EF No. 12.) Said motion was granted and the case was reopened on May 15, 2020. (ECF No. 13.) Upon review, the undersigned now recommends that this case be dismissed with prejudice pursuant to the screening provisions of the Prison Litigation Reform Act.
A. The Prison Litigation Reform Act
The Prison Litigation Reform Act ("PLRA"), Pub.L. No. 104-134, §§ 801-810, 110 Stat. 1321-66 to 1321-77 (April 26, 1996), requires a district court to review a complaint in a civil action in which a prisoner is proceeding in forma pauperis (28 U.S.C. § 1915(e)(2)) or seeks redress against a governmental employee or entity (28 U.S.C. § 1915A). The Court is required to identify cognizable claims and to sua sponte dismiss any claim that is frivolous, malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. See 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b). This action is subject to sua sponte screening for dismissal under both 28 U.S.C. §§ 1915(e)(2) and 1915A because Plaintiff is a prisoner proceeding in forma pauperis and seeking redress from governmental officers or employees.
B. Standard of Review
The legal standard for dismissing a complaint for failure to state a claim pursuant to § 1915(e)(2)(B)(ii) or § 1915A(b)(1) is identical to the legal standard used when ruling on a Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). See Tourscher v. McCullough, 184 F.3d 236, 240 (3d Cir. 1999). However, before dismissing a complaint or claims for failure to state a claim upon which relief may be granted pursuant to the screening provisions of 28 U.S.C. §§ 1915 and 1915A, a court must grant the plaintiff leave to amend his complaint, unless amendment would be inequitable or futile. See Grayson v. Mayview State Hosp., 293 F.3d 103, 113-14 (3d Cir. 2002).
In reviewing a pro se plaintiff's complaint, the court must accept all factual allegations in the complaint as true and take them in the light most favorable to the pro se plaintiff. See Erickson v. Pardus, 551 U.S. 89, 93-94 (2007); Phillips v. County of Allegheny, 515 F.3d 224, 234-35 (3d Cir. 2008). A complaint must be dismissed 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, 570 (2007). "Factual allegations must be enough to raise a right to relief above a speculative level." Id. at 555. The court need not accept inferences drawn by the plaintiff if they are unsupported by the facts as set forth 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 School Dist., 132 F.3d 902, 906 (3d Cir. 1997)). Nor must the court accept legal conclusions set forth as factual allegations. Bell Atlantic Corp., 550 U.S. at 555 (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). Additionally, a civil rights claim "must contain specific allegations of fact which indicate a deprivation of constitutional rights; allegations which are nothing more than broad, simple and conclusory statements are insufficient to state a claim under § 1983." Alfaro Motors, Inc. v. Ward, 814 F.2d 883, 887 (2d Cir. 1987).
Finally, a court must employ less stringent standards when considering pro se pleadings than when judging the work product of an attorney. Haines v. Kerner, 404 U.S. 519, 520 (1972). When presented with a pro se complaint, the court should construe the complaint liberally and draw fair inferences from what is not alleged as well as from what is alleged. Dluhos v. Strasberg, 321 F.3d 365, 369 (3d Cir. 2003). In a section 1983 action, the court must "apply the applicable law, irrespective of whether the 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 Veteran Affairs, 165 F.3d 244, 247-48 (3d Cir. 1999)). See also Nami v. Fauver, 82 F.3d 63, 65 (3d Cir. 1996) ("Since this is a § 1983 action, the [pro se] plaintiffs are entitled to relief if their complaint sufficiently alleges deprivation of any right secured by the Constitution.") (citing Holder v. City of Allentown, 987 F.2d 188, 194 (3d Cir. 1993)). Notwithstanding this liberality, pro se litigants are not relieved of their obligation to allege sufficient facts to support a cognizable legal claim. See, e.g., Taylor v. Books A Million, Inc., 296 F.3d 376, 378 (5th Cir. 2002); Riddle v. Mondragon, 83 F.3d 1197, 1202 (10th Cir. 1996).
C. Discussion
The allegations in Plaintiff's Complaint are difficult to comprehend, but it appears that Plaintiff complains primarily of four things: (1) that he was not brought in front of the same magistrate judge who issued the warrant for his arrest in May 2016, (2) that he was subjected to a false arrest on May 27, 2016, (3) that he was subjected to a malicious prosecution by the Butler County District Attorney's Office, and (4) that his property was confiscated and destroyed when he was processed into the Butler County Prison on August 20, 2018. See, generally, (ECF Nos. 4, 4-1 & 4-2.)
Plaintiff's docket sheet for his criminal case confirms that he was arrested on May 27, 2016. See Commonwealth v. Shareef, MJ-50305-CR-338-2016. The docket sheet, which is a public record that is accessible online, reveals that he was charged with four counts of Intentional Possession of a Controlled Substance by a Person Not Registered; three counts of Manufacture, Delivery, or Possession with Intent to Manufacture or Deliver; and one count each of Possession of a Firearm Prohibited, Use/Possession of Drug Paraphernalia, and Dealing in Proceeds of Unlawful Activity with the Intent to Promote. All charges were held over and sent to the Butler County Court of Common Pleas to proceed at docket number CP-10-CR-1714-2016. The docket sheet for that case reveals that Plaintiff pled guilty to one count of Manufacture, Delivery, or Possession with Intent to Manufacture or Deliver and he was found guilty of one count of Possession of a Firearm Prohibited. On December 20, 2018, he was sentenced to a term of incarceration of four-and-a-half to nine years.
1. Res judicata
Plaintiff has previously filed cases in this Court complaining of issues identical to those complained of in his current Complaint. "Public policy dictates that there be an end of litigation; that those parties who have contested an issue be bound by the result of the contest; and that matters once tried shall be considered forever settled as between the parties." Baldwin v. Traveling Men's Assn., 283 U.S. 522, 525 (1931). In this regard, "[a] fundamental precept of common-law adjudication, embodied in the related doctrines of collateral estoppel and res judicata, is that a 'right, question or fact distinctly put in issue and directly determined by a court of competent jurisdiction . . . cannot be disputed in a subsequent suit between the same parties or their privies.'" Montana v. United States, 440 U.S. 147, 153 (1979) (quoting Southern Pacific R. Co. v. United States, 168 U.S. 1, 48-49 (1897)). "To preclude parties from contesting matters that they have had a full and fair opportunity to litigate protects their adversaries from the expense and vexation attending multiple lawsuits, conserves judicial resources, and fosters reliance on judicial action by minimizing the possibility of inconsistent decisions." Id., 440 U.S. at 153-54; see also Allen v. McCurry, 449 U.S. 90, 94 (1980); Parklane Hosiery Co. v. Shore, 439 U.S. 322, 326 (1979).
Pursuant to the doctrine of res judicata, a final judgment on the merits bars further claims by parties or their privies based on the same cause of action. Id. at 153 (citing Cromwell v. County of Sac, 94 U.S. 351, 352 (1877)). Additionally, "res judicata bars not only claims that were brought in a previous action, but also claims that could have been brought." In re Mullarkey, 536 F.3d 215, 225 (3d Cir. 2008); see also Parkview Assocs. P'ship v. City of Lebanon, 225 F.3d 321, 329 n.2 (3d Cir. 2000) (res judicata "prohibits reexamination not only of matters actually decided in the prior case, but also those that the parties might have, but did not, assert in that action.") It applies where there is "(1) a final judgment on the merits in a prior suit involving (2) the same parties or their privies and (3) a subsequent suit based on the same cause of action." In re Mullarkey, 536 F.3d at 225. Although res judicata is an affirmative defense for a defendant to plead, "dismissal for failure to state a claim may be appropriate when it is obvious, either from the face of the pleading or from other court records, that an affirmative defense such as res judicata will necessarily defeat the claim." Taylor v. Visinsky, 534 F. App'x 110, 112 (3d Cir. 2013) (citing Jones v. Bock, 549 U.S. 199, 215 (2007)).
a. Confiscation and Destruction of Property
This suit is not Plaintiff's first complaining about the confiscation and destruction of his property when he was processed into the Butler County Prison. In Civil Action No. 18-1494, Plaintiff alleged that certain officers and employees at the Butler County Prison, including Defendants Capt. Moore, Warden Demore, Assistant Warden Female, Sgt. Blumming, Capt. Zents, Sgt. Wagner, Warden Sneden, Michael Scuillo, Jeffrey Kengerski, Mark Bowman and Maj. Batiser, confiscated and destroyed his property when he was processed into the Butler County Prison on August 20, 2018. The Court construed Plaintiff's allegations concerning his property as attempting to assert a claim for the denial of due process and access to courts, found that he had failed to state either a due process or access to courts claim and dismissed them with prejudice.
All three requirements for res judicata are found here. Plaintiff has asserted claims against eleven of the same Defendants named in Civil Action No. 18-1494 based on their involvement in confiscating and destroying his property when he was processed into the Butler County Prison on August 20, 2018, and the Court's Order dismissing those claims for failure to state a claim upon which relief can be granted constitutes a "final judgment on the merits" for the purposes of res judicata. See Federated Dept. Stores, Inc. v. Moitie, 452 U.S. 394, 399 n.3 (1981) ("The dismissal for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6) is a 'judgment on the merits'" for purposes of res judicata). Therefore, under res judicata, the final judgment in Civil Action No. 18-1494 precludes and bars Plaintiff from relitigating any and all claims related to his property that either were litigated and decided or should have been raised and litigated in Civil Action No. 18-1494.
b. False Arrest
This is also not Plaintiff's first suit alleging that his arrest by Officer Brian Palko on May 27, 2016 was unconstitutional. In Civil Action 18-1494, Plaintiff asserted the same false arrest claim against Officer Palko, which the Court found to be time-barred under the two-year statute of limitations and dismissed it with prejudice for Plaintiff's failure to state a claim. As such, under res judicata, the final judgment in Civil Action No. 18-1494 also precludes and bars Plaintiff from relitigating any claims against Officer Palko stemming from his arrest.
c. Malicious Prosecution
Like the aforementioned claims brought against the officers and employees of the Butler County Prison and against Officer Brian Palko, this is also not the first suit that Plaintiff has brought against Terry Schultz, who Plaintiff identifies as the District Attorney of Butler County. In Civil Action No. 19-1330, Plaintiff alleged that Defendant Schultz maliciously prosecuted him, but, pursuant to the screening provisions of the Prison Litigation Reform Act, his claim against Defendant Schultz was dismissed with prejudice based on the doctrine of prosecutorial immunity.
According to the docket sheet for Plaintiff's criminal case, Defendant Schultz was the Assistant District Attorney of Butler County who was involved in prosecuting Plaintiff's criminal case.
The requirements for res judicata are also present here. Plaintiff has again asserted a malicious prosecution claim against Defendant Schultz based on his involvement in prosecuting the same criminal case that was at issue in Civil Action 19-1330, and, even though the Complaint in that case was dismissed pursuant to the screening provisions of the Prison Litigation Reform Act, the Court's Order dismissing that claim constitutes a "final judgment on the merits" for purposes of res judicata. See, e.g., Cieszkowska v. Gray Line New York, 295 F.3d 204 (2d Cir. 2002) (giving res judicata effect to a prior suit which had been dismissed under 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim upon which relief could be granted and hence barring a second suit which the District Court dismissed "for failure to state a claim pursuant to 28 U.S.C. § 1915(e)(2) because the complaint was barred by res judicata"). Therefore, under res judicata, the final judgment in Civil Action No. 19-1330 precludes and bars Plaintiff from relitigating any and all claims against Defendant Schultz related to his prosecution of Plaintiff's criminal case that either were litigated and decided or should have been raised and litigated in Civil Action No. 19-1330.
Commonwealth v. Shareef, CP-10-CR-1714-2016 (Butler Cty. Ct. of Comm. Pleas).
2. Defendants CO Waltemire and Sgt. Watimere
It is not clear from the Complaint whether CO Waltemire and Sgt. Watimere are the same person, although it is likely that they are. At times Plaintiff uses their titles interchangeably and their names are inconsistently spelled throughout his Complaint. However, it is clear that this defendant, or both defendants, was an employee of the Butler County Prison and that Plaintiff is attempting to assert the same claims against him as those asserted with respect to his property in Civil Action 18-1494. It even appears that Plaintiff may have intended this/these individual(s) to be a defendant in Civil Action 18-1494, but they were not listed in the caption of his complaint in that case. Since this/these defendant(s) was/were not a party or parties to Civil Action 18-1494, the traditional doctrine of res judicata would normally not apply. However, the Third Circuit has held that res judicata applies when a plaintiff has "asserted essentially the same claim against different defendants where there is a close or significant relationship between successive defendants." Lubrizol Corp. v. Exxon Corp., 929 F.2d 960, 966 (3d Cir. 1991) (citing Gambocz v. Yelencsics, 468 F.2d 837 (3d Cir. 1971)). Moreover, "a lesser degree of privity is required for a new defendant to benefit from claim preclusion than for a plaintiff to bind a new defendant in a later action." Id. at 966. (citing Bruszewski v. United States, 181 F.2d 419, 422 (3d Cir. 1950) ("[W]here . . . res judicata is invoked against a plaintiff who has twice asserted essentially the same claim against different defendants, courts have . . . enlarged the area of res judicata beyond any definable categories of privity between the defendants.")); see also Marran v. Marran, 376 F.3d 143, 151 (3d Cir. 2004) ("Privity is merely a word used to say that the relationship between one who is a party on the record and another is close enough to include that other within the res judicata.") (internal quotation marks and citations omitted).
Indeed, in Gambocz, the plaintiff brought an action against several alleged conspirators. Following the dismissal of the action with prejudice, the plaintiff brought a second action naming additional defendants who allegedly participated in the same conspiracy. Apart from naming different defendants, the material facts of the two actions were identical. Relying on Bruszewski, the court held that res judicata barred the second action even as to those defendants who were not parties to the first action. It held that "res judicata may be invoked against a plaintiff who has previously asserted essentially the same claim against different defendants where there is a close or significant relationship between successive defendants." Gambocz, 468 F.2d at 841. It found that where the first action alleged the existence of a conspiracy involving certain individuals and
the sole material change in the later suit is the addition of certain defendants, some of whom had been named in the original complaint as participating in the conspiracy but had not been named as parties defendant at that time . . . the relationship of the additional parties to the second complaint was so close to parties to the first that the second complaint was merely a repetition of the first cause of action and, therefore it is barred by the application of [res judicata].Id. at 842. In the Third Circuit, this is sometimes referred to as "Bruszewski doctrine". See, id.
In this case, Defendants CO Waltemire and Sgt. Watimere (assuming they are two different individuals) are closely related to the Butler County Prison defendants named in Civil Action 18-1494. Indeed, they were employed at the Butler County Prison at the time of the alleged violation, and, according to Plaintiff, they were allegedly involved in the same violation complained of in Civil Action No. 18-1494. For purposes of the res judicata assessment, the undersigned considers this a sufficiently "close" relationship. See, e.g., Spencer v. Varano, 3:17-cv-2158, 2019 WL 384959, at *3 (M.D. Pa. Jan. 30, 2019) (for purposes of res judicata, finding defendant who was an official at the Columbia County Prison to be in a "close" relationship with other defendants who were also officials at the Columbia County Prison and had been sued before for the same claim based on the same allegations); Spencer v. Courtier, No. C.A. No. 09-124E, 2011 WL 2670198, at *7 n.5 (W.D. Pa. May 23, 2011) (finding a "close or significant relationship" between defendants who were employees of the Department of Corrections based on allegation that they "worked in conjunction" with each other to place him in the SMU); see also Gambrell v. Hess, 777 F. Supp. 375, 381-82 (D.N.J. Feb. 14, 1991). Accordingly, res judicata bars this suit against Defendants CO Waltemire and Sgt. Watimere, as well, since any other ruling "would reward litigants who failed, intentionally or not, to include all relevant parties in [an] action and would permit two (or possibly many more) attempts to try the same cause of action." Williams v. City of Allentown, 25 F.Supp.2d 599, 604 (E.D. Pa. Nov. 18, 1998).
Alternatively, the undersigned would recommend dismissal of the claims against Defendants CO Waltemire and Sgt. Watimere for the same reasons that they were dismissed for failure to state a claim in Civil Action No. 18-1494.
3. Defendant Judge William O'Donnell
Although Plaintiff has previously sued a number of judges who were involved in his criminal case out of Butler County, including Judges Fullerton, McCune, and Doerr, this is the first action in which Plaintiff has sued Judge William O'Donnell. The Court should take judicial notice that Judge O'Donnell is a judge of Magisterial District Court 50-3-01, which is an entity of the Unified Judicial System of Pennsylvania. See 42 Pa. C.S.A. § 301(9).
To the extent Plaintiff has sued Judge O'Donnell in his official capacity, the Eleventh Amendment bars suit against him. In this regard, "a suit against a state official in his or her official capacity is not a suit against the official but rather is a suit against the official's office. As such, it is no different from a suit against the State itself." Will v. Mich. Dep't of State Police, 491 U.S. 58, 71 (1989) (internal citation omitted). Here, a claim against Judge O'Donnell in his official capacity is really a claim against the court over which he presides; which is an entity of the Commonwealth of Pennsylvania. See Callahan v. City of Philadelphia, 207 F.3d 668, 672 (3d Cir. 2000) ("All courts and agencies of the unified judicial system . . . are part of 'Commonwealth government' and thus are state rather than local agencies."); see also Benn v. First Judicial Dist. of Pa., 426 F.3d 233, 241 (3d Cir. 2005) (holding that the First Judicial District was a state entity and thus entitled to Eleventh Amendment immunity). As such, any claim against him in his official capacity is no different than a claim against the Commonwealth of Pennsylvania.
The Eleventh Amendment, however, bars civil rights suits against a State in federal court by private parties where the State has not consented to such action. Laskaris v. Thornburgh, 661 F.2d 23, 25 (3d Cir. 1981) (citing Alabama v. Pugh, 438 U.S. 781 (1978)). In fact, it is subject to only three exceptions: (1) congressional abrogation, (2) state waiver, and (3) suits against individual state officers for prospective relief to end an ongoing violation of federal law under Ex parte Young, 209 U.S. 123, 159-60 (1908). MCI Telecommunication Corp. v. Bell Atlantic Pennsylvania, 271 F.3d 491, 503 (3d Cir. 2001).
No exceptions to Eleventh Amendment immunity are applicable here. Congress has not expressly abrogated Pennsylvania's Eleventh Amendment immunity from civil rights suits for damages. See, e.g., Will, 491 U.S. at 66 ("Section 1983 provides a federal forum to remedy many deprivations of civil liberties, but it does not provide a federal forum for litigants who seek a remedy against a State for alleged deprivations of civil liberties."); Quern v. Jordan, 440 U.S. 332, 341 (1979); Boykin v. Bloomsburg Univ. of Pa., 893 F. Supp. 378 (M.D. Pa. 1995) (holding that States' immunity has not been abrogated for actions brought under §§ 1981, 1983, 1985, and 1986), aff'd, 91 F.3d 122 (3d Cir. 1996). Additionally, by statute, the Commonwealth of Pennsylvania has specifically withheld its consent to be sued. See 42 Pa. C.S.A. § 8521(b); 1 Pa. C.S.A. § 2310; see also Laskaris, 661 F.2d at 25. Finally, the Ex parte Young exception does not apply because Plaintiff has not alleged an ongoing violation of federal law and he does not seek purely prospective relief. As such, Judge O'Donnell is entitled to Eleventh Amendment immunity to the extent he is sued in his official capacity.
Additionally, to the extent Judge O'Donnell is sued in his individual capacity, he is entitled to absolute immunity from civil liability pursuant to the doctrine of judicial immunity, which "is founded upon the premise that a judge, in performing his or her judicial duties, should be free to act upon his or her convictions without threat of suit for damages." Figueroa v. Blackburn, 208 F.3d 435, 440 (3d Cir. 2000) (citing Bradley v. Fisher, 80 U.S. 335, 347 (1872)). Indeed, a judge's immunity from civil liability is overcome in only two situations: (1) for actions not taken in the judge's judicial capacity, and (2) though judicial in nature, for actions taken in the complete absence of all jurisdiction. Id. (citing Mireles v. Waco, 502 U.S. 9, 11-12 (1991)). Plaintiff's allegations against Judge O'Donnell, however, do not give rise to either situation. Accordingly, Judge O'Donnell is also entitled to absolute judicial immunity.
4. Defendant State Police of Butler
Finally, Plaintiff has sued the State Police of Butler. First, it is noted that the "State Police of Butler" is not an entity that exists, and it is unclear whether Plaintiff actually intended to sue the Pennsylvania State Police, the Butler County Sherriff's Office or the Police Department for the City of Butler.
Based on Plaintiff's criminal docket and the record in Civil Action 18-1494, where Plaintiff raised a false arrest claim against Officer Brian Palko, it appears that Plaintiff may have intended to sue the State Police of Pennsylvania as Brian Palko appears to be a State Police Trooper. --------
To the extent Plaintiff intended to state a claim against the Pennsylvania State Police, it is protected by Eleventh Amendment immunity for the same reasons stated above with respect to Judge O'Donnell, see, e.g., Luck v. Mount Airy No. 1, LLC, 901 F.Supp.2d 547, 558 (M.D. Pa. Oct. 4, 2012), and no exceptions to Eleventh Amendment immunity are applicable here. To the extent Plaintiff instead intended to state a claim against the Butler County Sherriff's Office or the Police Department for the City of Butler, it is treated as a claim against Butler County and the City of Butler, respectively. See, e.g., Colburn v. Upper Darby Township, 838 F.2d 663, 671 n.7 (3d Cir. 1988) (treating Upper Darby Township and Upper Darby Police Department as one entity). However, the Supreme Court's jurisprudence "require[s] a plaintiff seeking to impose liability on a municipality under § 1983 to identify a municipal 'policy' or 'custom' that caused the plaintiff's injury." Bd. of County Com'rs of Bryan County v. Brown, 520 U.S. 397, 403 (1997) (citing Monell v. Department of Social Services of City of New York, 436 U.S. 658, 694 (1978)). This requires a plaintiff to show that "through its deliberate conduct, the municipality was the 'moving force' behind the injury alleged." Id. at 404 (emphasis in original). In this case, however, Plaintiff failed to allege any action by the "State Police of Butler", let alone "deliberate conduct" that would show that Butler County or the City of Butler was the "moving force" behind Plaintiff's alleged injuries. Accordingly, any claim against them is subject to dismissal for failure to state a claim upon which relief can be granted.
D. Amendment of Complaint
The court must allow amendment by the plaintiff in a civil rights case brought under § 1983 before dismissing for failure to state a claim, irrespective of whether it is requested, unless doing so would be "inequitable or futile." Fletcher-Harlee Corp. v. Pote Concrete Contractors, Inc., 482 F.3d 247, 251 (3d Cir. 2007); see also Alston v. Parker, 363 F.3d 229, 235 (3d Cir. 2004) (asserting that where a complaint is vulnerable to dismissal pursuant to 12(b)(6), the district court must offer the opportunity to amend unless it would be inequitable or futile). The undersigned is cognizant of these holdings but finds that allowing for amendment by Plaintiff would be futile.
III. CONCLUSION
For the following reasons, it is respectfully recommended that Plaintiff's Complaint (ECF Nos. 4, 4-1 & 4-2) be dismissed with prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) & (iii) and 28 U.S.C. § 1915A(b)(1) & (2).
In accordance with the applicable provisions of the Magistrate Judges Act, 28 U.S.C. § 636(b)(1)(B)&(C), and Rule 72.D.2 of the Local Rules of Court, the parties shall have fourteen (14) days from the date of the service of this report and recommendation to file written objections thereto. Any party opposing such objections shall have fourteen (14) days from the date on which the objections are served to file its response. A party's failure to file timely objections will constitute a waiver of that party's appellate rights.
Dated: July 14, 2020.
/s/_________
Lisa Pupo Lenihan
United States Magistrate Judge Cc: Hasan Shareef
NU-0779
SCI Forest
P.O. Box 307
Marienville, PA 16239