The opinion of the court was delivered by: Norma L. Shapiro, S.J.
Before the court are two motions to dismiss Ronald P. Walker's amended complaint under Federal Rule of Civil Procedure 12(b)(6), Walker's motion for leave to amend the complaint and serve process beyond 120 days, and certain defendants' motion for leave to file a reply brief. Walker's amended complaint alleges eight claims under 42 U.S.C. § 1983. This court has jurisdiction under 28 U.S.C. § 1331.
We accept the following factual allegations as true. See Phillips v. County of Allegheny, 515 F.3d 224, 228 (3d Cir. 2008).
Plaintiff Ronald P. Walker ("Walker") is a prisoner of the Commonwealth of Pennsylvania Department of Corrections ("DOC") housed at SCI Graterford. He is currently serving an aggregate sentence of 19 to 49 years for two separate convictions in 1986 and 1987.
A. Incorrect Classification as a Sex Offender and Resulting Denials of Parole
In June 2000, Walker received notification that he had been classified as a "Sex Offender;" the classification was incorrect as Walker had never plead guilty or been convicted of a sexual offense. On June 9, 2003, Walker filed a complaint under 42 U.S.C. § 1983 and Pennsylvania common law against officials at SCI Graterford because of his classification as a sex offender and DNA samples taken in 1995 and 2002.
Walker became eligible for parole in 2004; after review the Pennsylvania Board of Probation and Parole ("PBPP") refused to grant parole on October 7, 2004. Walker alleges PBPP's reasons for denying parole relate to his failure to accept responsibility for a sexual crime, but he was never convicted of a sexual crime. On May 4, 2005, Walker, filing a petition for writ of habeas corpus with this court, argued that the denial of parole violated due process because the PBPP relied on an inaccurate sex offense classification in his file.
The PBPP conducted a second parole review for Walker, and again refused to grant him parole; Walker was notified on December 28, 2005. Walker filed a second petition for writ of habeas corpus alleging that the PBPP again relied on the incorrect sex offender classification in denying parole. Walker's second habeas petition was held in suspense pending the outcome of the first action. On August 15, 2006, the chairperson of the PBPP, defendant Catherine McVey, issued an internal memorandum providing all requested relief. By orders dated September 28, 2006 and April 18, 2007, this court found Walker had a substantive due process right in parole decisions based on accurate information, but denied the habeas petitions as moot.
B. Walker's 2005 and 2006 Pre-Release Applications
In July 2005, Walker submitted an application for pre-release to defendant Charles Hensley, Walker's counselor at SCI Graterford. At the time of his application, Walker had not been convicted of a crime rendering him ineligible for pre-release, and no other reason existed for his case to be considered problematic. Months passed and Walker received no response to his application, even though other inmates applying during the same time received replies, including favorable replies. Walker sent Inmate Request Forms to defendants Hensley, DOC Unit Manager Scott Pasquale, and Superintendent of SCI Graterford David DiGuglielmo, to inquire about the status of his pre-release application; each defendant told Walker that he was still waiting for paperwork to be processed. On April 3, 2006, Hensley informed Walker that his pre-release application was initially approved, but then denied. The same day, Pasquale told Walker that DiGuglielmo had stopped processing his pre-release application, and that Walker had been previously notified of this fact on several occasions.
On April 13, 2006, DiGuglielmo explained to Walker that his application had been denied because his case was problematic and community sensitivity weighed against a favorable recommendation. The same day, Walker filed a grievance alleging that the pre-release denial was illegal. In response, DiGuglielmo stated the application was denied because of confidential information that could not be shared with Walker.
In June 2006, Walker filed a second pre-release application. While this application was pending, DiGuglielmo told Walker that if he did not "back off" his lawsuits against the prison and its officials, DiGuglielmo would deny his second pre-release application. On or about November 21, 2006, DiGuglielmo denied the application.
C. The Events of June 5 and 6, 2006
On the evening of June 5, 2006, Walker became very ill and sought medical care in the prison infirmary. A test revealed Walker was borderline diabetic, and the infirmary staff gave him an insulin injection. An employee of the infirmary informed Walker that he should be sure to eat the following day because of the injection.
At approximately 4:00 a.m. on June 6, 2006, Walker was awakened by an unnamed corrections officer to be taken to court for a hearing. Walker knew the hearing had been continued and informed the corrections officer. Despite repeated protestations, Walker was taken to the Assessment Unit to prepare for transport to the court. At the Assessment Unit, Walker tried to persuade corrections officers Danisavich, Cahill and Captain Williams that he did not need to go to court. Walker also informed the three officers that he had received an insulin shot the night before and therefore needed to eat. Captain Williams told Walker that he could have either an additional shot of insulin or food, but not both. Captain Williams then decided that Walker would have an insulin shot but not food.
After Walker received the second insulin shot, defendants Williams, Cahill and Danisavich refused to give Walker any food, and took him to court. Cahill and Danisavich brought Walker to the courthouse, where a federal marshal informed them that the hearing had been continued. In response, Cahill and Danisavich requested that Walker be placed in a holding cell while they called SCI Graterford. The marshals agreed, and Cahill and Danisavich indicated they would be "right back."
Cahill and Danisavich returned to the courthouse approximately three hours later. A marshal inquired whether Walker should receive a meal prior to transport to SCI Graterford, but defendants stated they did not want Walker to eat. Cahill and Danisavich told the marshal that Walker would be fed at SCI Graterford. Walker was not fed when he returned to SCI Graterford.
As a result of not eating, Walker became very ill, lost consciousness, soiled his clothes, vomited, and temporarily lost his vision.*fn1 At SCI Graterford, Walker was taken to the dispensary where he received medical attention. Defendants Cahill and Danisavich gave Walker a paper bag purportedly containing food; the bag contained only cartons of milk. Walker was subsequently diagnosed with a kidney condition and other health problems he alleges were caused by the events of June 6, 2006. Walker remains diabetic and takes daily medication for his condition.
D. The Events of March 25, 2008 On January 7, 2008, Walker was paroled to the Allentown Community Corrections Center ("Allentown CCC"). On Friday, March 21, 2008, federal marshals delivered legal papers for a pending lawsuit to Walker. Defendant Tracy Jacobson, director of the Allentown CCC, observed the delivery. She approached Walker afterward and warned him that she would not tolerate his filing any lawsuits while at Allentown CCC. During the same time period, Walker filed a complaint against defendant Allison Robertson, his parole agent, and pursued grievances regarding the conditions of his parole with Senator Pat Browne's office.
On March 25, 2008, Walker was summoned to a meeting with defendants Jacobson, Robertson, Lieutenant Michael Gourley of the DOC, and his counselor. The meeting was purportedly to clarify issues with regard to Walker's Social Security status. Defendants Jacobson, Robertson and Gourley claimed that Walker was hostile during the meeting, threatened Jacobson, and refused to comply with her orders. Walker maintains that he was not hostile and the account provided by the defendants was inaccurate. Walker alleges that Jacobson, Robertson and Gourley agreed to hold the meeting to fabricate a parole violation so that he would be arrested and re-incarcerated. Based on defendants' accounts of Walker's conduct at the meeting, Walker was discharged from Allentown CCC, arrested and re-incarcerated at SCI Graterford.
At a hearing on June 25, 2008, the Montgomery County Court of Common Pleas expunged the incorrect sex offender designation from Walker's record. On December 4, 2008, Walker received notification that he was required to participate in the Sex Offender program at SCI Graterford. Walker also received notice that he would be considered for parole by the PBPP. At a December 10, 2008 parole hearing, Walker informed the interviewer that he still was improperly categorized as a sex offender. The PBPP was to reschedule Walker's parole interview, but has not yet set a date.*fn2
Walker's amended complaint asserts eight substantive counts for violations of Section 1983 against thirteen named defendants. Section 1983 authorizes redress for violation of constitutional rights and provides, in pertinent part, that:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. 42 U.S.C. § 1983. Section 1983 does not create a substantive right; it provides a method for vindicating federal rights conferred by the United States Constitution. Baker v. McCollan, 443 U.S. 137 (1979). To establish a claim under Section 1983, a plaintiff must demonstrate:
(1) violation of a right secured by the Constitution and the laws of the United States; and (2) deprivation of the right by a person acting under color of state law. American Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40 (1999).
Federal Rule of Civil Procedure 12(b)(6) permits a court to dismiss all or part of an action for "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). A complaint must contain sufficient factual matter, accepted as true, to state a claim for relief that is "plausible on its face." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949, 173 L.Ed. 2d 868 (2009); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is facially plausible when the plaintiff pleads sufficient factual content to allow the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. Iqbal, 129 S.Ct. at 1949.The plausibility standard is not a "probability requirement," but it does require more than a possibility that a defendant has acted unlawfully. Id.
In deciding a motion to dismiss, the court may consider the allegations in the complaint, exhibits attached to the complaint and matters of public record, including judicial proceedings. S. Cross Overseas Agencies, Inc. v. Wah Kwong Shipping Group, Ltd., 181 F.3d 410, 426 (3d Cir. 1999). The court need not assume that the plaintiff can prove facts not alleged in the complaint, see City of Pittsburgh v. West Penn Power Co., 147 F.3d 256, 263 (3d Cir. 1998), ...