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Montgomery v. Derose

August 20, 2009

EDWARD MONTGOMERY, PLAINTIFF
v.
DOMINICK DEROSE, ET AL., DEFENDANTS



The opinion of the court was delivered by: Judge Muir

(Complaint Filed 11/07/08)

MEMORANDUM AND ORDER

Background

Edward Montgomery, an inmate confined in the Dauphin County Prison, Harrisburg, Pennsylvania, filed the above captioned civil rights complaint pursuant to 42 U.S.C. § 1983. Plaintiff complains of the conditions surrounding his confinement. Currently pending before the court is defendants' motion to dismiss the plaintiff's complaint in which defendants argue that Montgomery has failed to exhaust available administrative remedies.*fn1 (Doc. 23). The motion is fully briefed and is ripe for disposition. For the following reasons, the Court will grant the motion.

Standard of Review

Federal Rule of Civil Procedure 12(b)(6) provides for the dismissal of claims that fail to assert a basis upon which relief can be granted. See FED. R. CIV. P. 12(b)(6). When deciding a motion to dismiss for failure to state a claim, the court is required to accept as true all of the factual allegations in the complaint and all reasonable inferences that can be drawn therefrom. Langford v. City of Atlantic City, 235 F.3d 845, 847 (3d Cir. 2000) (citing Nami v. Fauver, 82 F.3d 63, 65 (3d Cir. 1996)). "The complaint will be deemed to have alleged sufficient facts if it adequately put[s] the defendant on notice of the essential elements of the plaintiff's cause of action." Id. The court should not dismiss a complaint for failure to state a claim unless it appears beyond a doubt that "no relief could be granted under any set of facts that could be proved consistent with the allegations." Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514 (2002); see also Bell Atlantic Corporation v. Twombly,__U.S.__, 127 S.Ct. 1955 (2007)(while a complaint attacked by a motion to dismiss for failure to state a claim upon which relief can be granted does not need detailed factual allegations, a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action is not acceptable). In considering a motion to dismiss, a court must accept the veracity of a plaintiff's allegations. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); Brouse v. Itinger, et al., Civil No. 88-1627 (M.D. Pa. April 26, 1989). However, the court is "not required to accept legal conclusions either alleged or inferred from the pleaded facts". Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993) (quoting Mescall v. Burrus, 603 F.2d 1266, 1269 (7th Cir. 1979)). Likewise, the court need not "conjure up unpled allegations or contrive elaborately arcane scripts" in order to breathe life into an otherwise defective complaint. Gooley v. Mobil Oil Corp., 851 F.2d 513, 514 (1st Cir. 1988). In light of these standards, we will now consider the merits of the motion to dismiss.

Facts Alleged in Amended Complaint

Plaintiff states that on May 29, 2008, "C-Block was on a lockdown" and that on June 6, 2008, "[he] was transferred from B-Block's day room" and "should not have been because [he] was already placed on a block that was already lockdown[ed]." (Doc. 1, complaint).

Plaintiff further alleges that a June 16, 2008 request by inmates for "a white shirt to come to block" resulted in all inmates being placed "on excessive lockdown, denied hot meals, showers and basic needs to survive," as well as "no recreation for over 3 weeks" and "strip searched on camera and handcuffed for showers after 2 weeks without showers." Id. In addition, plaintiff claims that defendants held his legal mail and his "right to receive information through the mail." Id. Thus, plaintiff filed the instant action in which he claims that his First, Fourth, Eighth and Fourteenth Amendment rights were violated. Id.

On October 28, 2008, plaintiff submitted an Inmate Request Form to Warden DeRose requesting:

To file a grievance for the pretrial confinement conditions that occurred on June 16th to July 8th. I wrote one after the incident and didn't get a response from the prison. I want to make sure my grievance was heard and my legal work has still not been returned to me. (Doc. 25, Ex. A, Inmate Request Form).

On November 7, 2008, plaintiff filed the instant civil rights action, seeking compensatory and punitive damages, as well as injunctive relief. (Doc. 1, complaint).

By correspondence dated November 19, 2008, Captain Lahr recommended to Major Stewart that plaintiff's October 28, 2008 complaint be denied based on the following:

On October 28, 2008, inmate Edward Montgomery filed a complaint. In the complaint he alleges that he filed a grievance that was not responded to concerning "Pretrial Confinement". Upon investigation, searching the data base for all grievances filed by inmate Montgomery, it was determined that no grievance was filed previously. Additionally inmate Montgomery claims that legal paperwork was never returned to him. Attached is a copy of the "Inmate (Reclassification) property inventory form dated August 19, 2008 and signed by inmate Edward Montgomery that he received all personal belongings that were stored in booking. Additionally documentation is attached proving that inmate Montgomery never filed a prior grievance as he ...


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