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Caldwell v. Folino

June 30, 2009

CLAY CALDWELL, PLAINTIFF,
v.
SUPERINTENDENT LOUIS FOLINO; LIEUTENANT M.A. PRICE; SGT. GAGNON; C.O. J. MILLER; C.O. LUKACHYK; C.O. TOPKA; C.O. SOKOL; JEFFREY A. BEARD, SECRETARY OF CORRECTION; AND LT. NORMAN, DEFENDANTS.



The opinion of the court was delivered by: Amy Reynolds Hay Chief United States Magistrate Judge

Chief Magistrate Judge Amy Reynolds Hay

MEMORANDUM OPINION Re: Dkt. [40]

Clay Caldwell ("Plaintiff") is serving a life sentence in the Department of Corrections ("DOC"). He was incarcerated at SCI-Greene during the events that give rise to this civil rights suit. All nine Defendants are employed by the DOC and all but one of them, i.e., Secretary Beard, were employed at SCI-Greene. Presently pending before the court is Defendants' motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6), which the court will grant for the most part.

Plaintiff's pro se complaint is not a model of clarity but it essentially concerns several incidents. They are as follows.

First, Plaintiff alleges that Defendant Corrections Officer ("CO") Sokol conducted pat searches*fn1 or pat down frisks of Plaintiff in an attempt to harass Plaintiff sexually. Plaintiff filed a grievance (No. 200085) against CO Sokol on September 7, 2007. Dkt. [12] at 4. Prior to completing the grievance process however, Plaintiff executed and filed the instant pro se complaint.

Plaintiff also complains that on November 4, 2007, Defendant Sokol falsely accused Plaintiff of a misconduct and had him placed in the Restricted Housing Unit ("RHU"). According to the misconduct report, when Defendant Sokol ordered Plaintiff to step over for a pat search Plaintiff threatened Sokol, refused to obey his orders and was verbally abusive. Dkt. [40-2]. Plaintiff alleges that the pat downs constituted sexual harassment because CO Sokol would "rub my inner thighs, touch my groin, and around my butt [sic]". Dkt. [12] at 4. As the November 4, 2007 encounter between Plaintiff and CO Sokol unfolded, Defendant Norman allegedly approached Plaintiff and said to him to "watch what I say out of my mouth[.]"*fn2 Id. at 4.

Plaintiff next alleges that prior to being transferred to the RHU, Plaintiff had to go through an inventory of his property with Corrections Officers and have some of it packed up because he could not have all of his property in the RHU. Plaintiff complains that in the course of the inventory process, he was told by guards that he had too much property and some of it would have to be destroyed. In fact, Plaintiff alleges that Defendants Lukachyk, Gagnon and Miller destroyed certain of Plaintiff's property, including a coffee mug, a TV antennae and a footlocker. Id. at 6-7. Plaintiff alleges that Defendant Topka asked Sergeant Gagnon what should be done with Plaintiff's TV antennae and escorted Plaintiff away from the property inventory when it was later halted. Id. at 7-8. In addition, Plaintiff asserts that Defendant Topka told Plaintiff that he messed up during the inventory. Id. at 8.

During the inventory, Plaintiff asserts that Defendant Gagnon did not permit Plaintiff to remove pictures of his family that were taped to a piece of cardboard and instead, Gagnon removed them, apparently in a rough or destructive manner. Id. at 7-8. Plaintiff then asked for a grievance but was allegedly denied one, whereupon Plaintiff refused to sign the inventory sheet. At that point, Defendant Gagnon halted the inventory process and indicated it would be completed the following week. Id. Thereafter, Plaintiff alleges that he received another allegedly false misconduct from Defendant Miller, who accused Plaintiff of disobeying an order to remain seated during the inventory process. Id. at 8.

When the inventory of his property resumed, Plaintiff asserts that Defendant Gagnon handcuffed Plaintiff too tightly en route to the inventory area, but Plaintiff "wasn't saying to[o] much." Id. at 9. Plaintiff also accuses Gagnon of tearing up Plaintiff's legal work, i.e., an "Allowance of Appeal." Id. at 7.

Other complaints include an accusation against Defendants Lukachyk and Gagnon of putting their fingers in Plaintiff's "medicine bag," a spiritually significant item for Plaintiff, who is a practitioner of Native American spirituality. Plaintiff also accuses Defendant Gagnon of referring to the items contained in the medicine bag as junk and crap. Id. at 9.

Plaintiff's sole complaint against Defendant Price appears to be that he twice admitted in the grievance responses he authored, that Plaintiff's foot locker was indeed broken. Id. Plaintiff complains that Defendant Price is liable for the unlawful conduct of his officers and in lying in his responses to Plaintiff's grievances. Id. at 10.

The sole allegation against Defendant Folino is that he knew of the destruction of Plaintiff's property and "did nothing but stated his officers were right in his investigation[.]" Id. at 11.

The sole allegation against Defendant Beard is that he is "liable for knowing of the wrong doings of his employee's [sic] here at SCI-Greene once the grievance system has been used in full and for allowing the wrongs; not to make them right as he is the boss of the correctional system." Id. at 13.

Plaintiff contends that the foregoing violates his First, Fourth, Fifth, Eighth and Fourteenth Amendment due process and equal protection rights. Id. at 3, ¶ III. The difficulty is that Plaintiff does not relate which events give rise to which claims of constitutional violations.

We note preliminarily that Plaintiff seeks mostly money damages, however, he also appears to want injunctive relief in two forms: first, to have "the jobs" of Defendants Price, Gagnon and Miller, and second, to have contact visits with family and friends. To the extent that Plaintiff seeks contact visits, such requested injunctive relief is wholly unrelated to the wrongs alleged in the complaint and as such are improper and are stricken. See, e.g., Martin v. PA Dept. of Corrections, NO. CIV. A. 08-1604, 2009 WL 983006, at *1 (W.D.Pa., April 9, 2009)("Williams v. Platt, 2006 WL 149024, at *2 (W.D.Okla. Jan.18, 2006) holding that a preliminary injunction is inappropriate to address wrongs wholly unrelated to the complaint)"); Emile v. SCI-Pittsburgh, No. CIV A 04-974, 2006 WL 2773261 (W.D.Pa. Sept. 24, 2006). To the extent that Plaintiff seeks to have Defendants who were employed at SCI-Greene fired, such relief became moot upon Plaintiff's transfer out of SCI-Greene,*fn3 assuming the court ever had the power to order the firing of DOC employees. Fortes v. Harding, 19 F.Supp.2d 323, 326 (M.D.Pa. 1998).

Standard of Review and the PLRA

As the United States Supreme Court recently held in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), a complaint may properly be dismissed pursuant to Fed. R. Civ. P. 12 (b)(6) if it does not allege "enough facts to state a claim to relief that is plausible on its face." Id. at 570 (rejecting the traditional 12 (b)(6) standard set forth in Conley v. Gibson, 355 U.S. 41, 45-46 (1957)).*fn4 Under this standard, the court must, as a general rule, accept as true all factual allegations of the complaint and all reasonable inferences must be viewed in the light most favorable to plaintiff. Angelastro v. Prudential-Bache Securities, Inc., 764 F.2d 939, 944 (3d Cir. 1985). Nevertheless, under the 12(b)(6) standard, a "court need not . . . accept as true allegations that contradict matters properly subject to judicial notice or by exhibit." Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001), amended by, 275 F.3d 1187 (9th Cir. 2001). Nor must the Court accept inferences drawn by plaintiff if they are unsupported by the facts as set forth in the complaint. See California Pub. Employee Ret. Sys. v. ...


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