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July 1, 1992

H.G. MILLER, ET AL., Defendants


The opinion of the court was delivered by: RICHARD P. CONABOY

This is a Bivens-type *fn1" civil rights action filed by Ronald D. Veteto, an inmate at the Federal Correctional Institution at Bradford, Pennsylvania ("McKean"). Veteto filed the complaint while he was incarcerated at the United States penitentiary at Lewisburg, Pennsylvania ("Lewisburg"), alleging principally that Lewisburg prison officials conspired to deny him an effective means of access to the courts while he was confined in the Lewisburg administrative detention unit for several months in 1985. The defendants are former Lewisburg Warden Harold G. Miller "and other named unidentified employees of the U.S. Bureau of Prisons."

 Procedural History

 This case has a lengthy procedural history, much of which is relevant to today's decision. Veteto filed the original complaint, styled as a "Complaint -- Mandamus, Petition for Writ of Habeas Corpus", on July 11, 1985, naming then Lewisburg Warden Miller and other "John Doe" employees of the Federal Bureau of Prisons as defendants. Veteto claimed he was denied access to the courts by having writing materials, stationary and stamps withheld, as well as insufficient access to the prison law library during his stay in the Lewisburg administrative detention unit. Veteto also claimed he was denied meals, clean clothes, showers and recreation periods specifically prescribed by federal regulations and established Bureau of Prisons policy. He sought declaratory and injunctive relief, as well as money damages.

 The court dismissed the case as frivolous on July 30, 1985 under 28 U.S.C. § 1915(d) because the complaint indicated that Veteto had not pursued an administrative resolution to the allegations in the complaint before seeking relief in the district court. *fn2" The Third Circuit subsequently vacated the order of dismissal, ruling it was error to dismiss the complaint on exhaustion grounds without service, answer, or a preliminary hearing on the exhaustion question. Veteto v. Miller, 794 F.2d 98, 100 (3d Cir. 1986). The cause was remanded "to enable the plaintiff, if so minded, to amend his complaint so as to supply more specific facts on this subject and to enable the court to hold a preliminary hearing, if needed," to establish facts relevant to the exhaustion question. Id.

 Upon remand, Veteto ignored two orders directing him to file an amended complaint demonstrating that he had exhausted administrative remedies and the court dismissed the case without prejudice on September 30, 1986. Almost two months later, Veteto filed a motion to reinstate the case, arguing that no effective administrative remedies remained available to him because the incidents complained of had occurred over a year ago and any administrative appeals would be dismissed as untimely as a matter of course. In an order dated November 21, 1986, the court granted Veteto's motion and ordered him to file an amended complaint complete in all respects.

 Veteto, then incarcerated at the United States Penitentiary in Terre Haute, Indiana ("Terre Haute"), subsequently filed a document titled "Amended Complaint, Mandamus, and petition for Writ of Habeas Corpus". Again, he named Warden Miller and "other named unidentified employees of the U.S. Bureau of Prisons" as defendants. The amended complaint raised essentially the same undetailed allegations as those in the original complaint -- denial of access to the courts by having writing materials, stationary, stamps and personal legal materials withheld, as well as insufficient access to the prison law library. Veteto also claimed he was denied meals, clean clothes, showers and recreation. The most specific injury he alleged was that he was unable to "research or type" a brief in an Eleventh Circuit case because he was deprived of the proper resources.

 On September 14, 1990, the court issued an order directing Veteto to file a second amended complaint in conformity with the heightened pleadings standards required in civil rights cases within twenty days. Veteto, then incarcerated at the Federal Correctional Institution in Jessup, Georgia, filed a motion to stay all proceedings because his recent transfer left him without his legal materials. He also claimed he did not have access to the prison law library or writing materials. The court granted the request, and it was not until November 27, 1990 that Veteto filed a "Second Amended Complaint, Mandamus, and Petition for Writ of Habeas Corpus". Despite the court's instructions to file a more factually detailed complaint than he had in previous filings, the second amended complaint is a virtual carbon copy of the amended complaint Veteto filed in December, 1986.

 The defendants subsequently filed a motion to dismiss, alleging insufficient service of process on the unidentified defendants, failure to prosecute, and failure to state a claim upon which relief can be granted. The defendants argued that Veteto failed to state a viable claim because the second amended complaint depicted nothing more than respondeat superior liability against Miller and no actual injury sufficient to support an access to the courts claim. See Kershner v. Mazurkiewicz, 670 F.2d 440, 445 (3d Cir. 1982). Veteto disregarded the legal elements of the defendants' argument, arguing in opposition merely that the second amended complaint "states viable claims of constitutional violations upon which relief can be granted." Document 70 of record, page 1. The court denied the motion to dismiss inasmuch as it sought dismissal for insufficient service of process and failure to prosecute, but held the disposition of the motion for failure to state a claim in abeyance pending discovery.

 When the parties filed several discovery motions, the court issued an order denying the motions and directing the parties to hold a discovery conference in person to resolve their differences. The discovery conference proceeded as ordered, and the parties attempted to continue with discovery without court intervention. After the parties filed a new series of discovery motions, however, the court directed that they file discovery status reports in an attempt to define the issues as clearly as possible.

 The defendants' discovery status report indicated that Veteto served thirty-three sets of interrogatories upon corrections officers presently or formerly employed at Lewisburg, including defendant Miller, to which the interrogees responded. The defendants also served interrogatories on Veteto, which he answered. In addition, the defendants complied in part with various document requests, and produced, among other things, redacted portions of the log book used to record inmate visits to the administrative detention unit law library. They objected, however, to the production of some items on the ground that the requested information had nothing to do with Veteto's claims. Among the documents the defendants refused to produce are: (1) the full names, social security numbers, areas and dates of assignment and full facial pictures or photographs *fn3" of all persons employed at Lewisburg in 1985; (2) the titles and civil numbers of all actions taken against Lewisburg and its employees by inmates from 1983 through 1987; (3) copies of all administrative complaints and grievances taken against Lewisburg employees from 1983 through 1987; and (4) various prison manuals related to training and procedure. See Documents 95 and 120 of record. The defendants report also indicated that they opposed Veteto's request to take the depositions of fifty-three past and present Lewisburg officials. They claimed that because over thirty of the proposed deponents had already answered interrogatories truthfully and demonstrated no knowledge of the constitutional violations Veteto alleged, depositions of those individuals would be needlessly repetitive. The defendants objected to the depositions of the officials who had not been interrogated on the ground that their depositions would be premature until they demonstrated relevant information through answers to interrogatories.

 Veteto also submitted a status report, as well as a motion for recusal *fn4" and a second motion "to provide access to case law decisions" or, alternatively for appointment of counsel. *fn5" Veteto's report on the status of discovery indicated, among other things, that the defendants produced many but not all of the photographs of prison guards assigned to Lewisburg in 1985. Veteto admitted that his interrogatories had been answered, but maintained that the interrogees were evasive and nonresponsive, which necessitates that he take depositions from the interrogees. Defense counsel, he claims, agreed to allow the depositions of Warden Miller, as well as Miller's paralegal and the corrections officer who supervised the administrative detention unit in 1985.

 On December 31, 1991, the court ordered the parties to appear in chambers for a pretrial/case management hearing. The order directed the parties to be prepared to discuss all aspects of the case and informed them that "Fed.R.Civ.P. 16 allows the court to simplify the issues, avoid unnecessary proof and cumulative evidence, identify witnesses and eliminate frivolous claims or defenses. Consequently, certain issues may be eliminated and/or the entire case may be dismissed. Also, ripe motions will be considered." Document 123 of record. In a separate letter, the court advised Veteto that at the hearing he should be prepared to state "exactly what you hope to prove" against the defendants, "that is, to describe the conduct you say they were involved in that you claim violated your rights or some law." Document 124 of record. See Stackhouse v. Marks, 556 F.Supp. 270 (M.D.Pa. 1982).

 The hearing proceeded as scheduled on January 30, 1992, and the court questioned Veteto at length and allowed both him and counsel for the defendants to offer argument about all aspects of the case. At the close of the hearing, the court directed Veteto to file a brief addressing the defendants' motion to dismiss the second amended complaint and to identify, as clearly as possible, what claims he expected to prove either on the basis of that complaint or by amendment. After receiving an extension of time in which to do so, Veteto submitted a "brief regarding pretrial hearing."

 Though the court permitted Veteto to use the brief as a vehicle to clearly define the nature of his claims against the defendants, he stated very little, if anything, about the specific nature of his alleged injuries or how he attempted to prove them. Like many of Veteto's submissions, the brief is a rambling, confusing document, riddled with bitter language, legal conclusions and misstatements of fact. Five full pages are devoted to subject matter jurisdiction, which is not an issue. The brief also describes incidents of retaliation, none of which are either legally compelling or related to the allegations made in any of Veteto's three complaints. Veteto argues in the brief, as he has throughout this lawsuit, that his discovery efforts have been unsuccessful because the defendants are evasive and refuse to respond to reasonable discovery requests in a manner consistent with the Federal Rules of Civil Procedure. He claims that even though he "has not been able to get any of the prison guards and employees to admit involvement in their answer to the interrogatories, this does not translate into being unable to show their involvement." Document 135 of record, page 9.

 Motion to Dismiss for Failure to State a Claim

 When considering a motion to dismiss for failure to state a claim, the court is obligated to construe the allegations in the plaintiff's complaint liberally in favor of the plaintiff and draw all reasonable inferences in the plaintiff's favor. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); United States v. Mississippi, 380 U.S. 128, 143 (1965); Sturm v. Clark, 835 F.2d 1009 (3d Cir. 1987). Therefore, a complaint should never be dismissed for failure to state a claim unless the court is convinced beyond a doubt that the plaintiff can not prove any set of facts to support a claim which would permit a recovery. Conley v. Gibson, 355 U.S. 41, 45-46 (1957); District Counsel 47 v. Bradley, 795 F.2d 310 (3d Cir. 1986). Furthermore, uncounseled litigants like Mr. Veteto are entitled to an even greater degree of deference when the sufficiency of their pleadings is called into question. Haines v. Kerner, 404 U.S. 519, 520 (1972); Hughes v. Rowe, 449 U.S. 5 (1980).

 I. Warden Miller

 The defendants argue that Miller must be dismissed because there are no specific allegations against him in the second amended complaint and the doctrine of respondeat superior is an insufficient basis to hold a defendant liable for constitutional rights violations. Though neither the Supreme Court nor the Third Circuit has ruled specifically on the applicability of respondeat superior to Bivens suits, most courts considering the issue have borrowed principles from litigation arising under 42 U.S.C. § 1983 and not recognized vicarious liability in Bivens cases. See Dean v. Gladney, 621 F.2d 1331, 1334 (5th Cir. 1980) (citing cases). It appears highly unlikely that the Third Circuit would allow Bivens plaintiffs to use theories of recovery unavailable in § 1983 ...

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