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Johnson v. Derose

March 9, 2010

GEORGE A. JOHNSON, PLAINTIFF
v.
WARDEN DOMINICK DEROSE, ET AL., DEFENDANTS



The opinion of the court was delivered by: Judge Caldwell

Magistrate Judge Carlson

MEMORANDUM

I. Introduction

The pro se plaintiff, George A. Johnson, formerly a pretrial detainee at the Dauphin County Prison, filed this civil rights action pursuant to 42 U.S.C. § 1983 arising from a lockdown at the prison after "a fight occurred with some inmates." (Compl., Part IV ¶ 1).*fn1 Plaintiff makes five claims, a First Amendment free-exercise claim, a First Amendment access-to-the-courts claim, a conditions-of-confinement claim invoking the Eighth Amendment, a due-process claim based on a failure to give him a timely disciplinary hearing, and a claim that daily cell searches were improperly conducted.

We are considering the magistrate judge's report and recommendation recommending that the action be dismissed because Plaintiff has failed to comply with court orders in relation to the defendants' motion to dismiss and because the magistrate judge believes Plaintiff is refusing to accept his mail in this case. The magistrate judge also recommends dismissal by agreeing with the defendants that Plaintiff fails to state claims upon which relief may be granted.

Plaintiff has filed objections to the report. These objections cast this case in a light unavailable to the magistrate judge when he recommended dismissal. Thus we decline the magistrate judge's recommendation that the case be terminated. However, we will require Plaintiff to file a second amended complaint.

II. Background and Procedural History

On February 10, 2009, Plaintiff filed his original complaint. It named as defendants Dominick DeRose, the warden at the Dauphin County Prison; deputy warden Nichols; and Jeffrey Haste, a member of the county prison board. The complaint alleges the following. "On May 29, 2008, a fight [o]ccurred with some inmates" at about 7:30 p.m. to 8:00 p.m. on Plaintiff's cell block. (Doc. 1, Compl. Part IV ¶ 1). At the time, Plaintiff was locked in his cell because his recreation time was over, and he therefore could not have been involved in the fight. (Id.). Plaintiff identified Geoffrey Timothy as the officer on the block that night. (Id.).

Plaintiff does not directly say so, but as a result of the fight, the block was put in lockdown, including Plaintiff. The lockdown appears to have lasted at least three weeks. (Id. ¶ 2). During this time, the inmates asked the block officers if they could see a "white shirt," a lieutenant, a captain or a deputy warden, someone of "high rank," but the request was refused, and they were told that if they kept on asking, they would stay in lockdown. (Id.). The block caseworker also refused to do anything. (Id.).

Plaintiff alleges that "[o]n June 16, they took all of our belongings and left us with only a jail jumpsuit, shower shoes and a blanket. We had no underwear, no washcloth, no toothpaste, no deodorant, no soap, no cup, no writing (sic), no toilet tissue, no sheets, . . . no access to the phone, no law library," and no nutritious food (cold cuts were eaten three times a day). (Id. ¶ 3). For these conditions of confinement, Plaintiff alleges a violation of his Eighth Amendment rights and seeks $25 million in damages.

Plaintiff is proceeding in forma pauperis, so the magistrate judge initially assigned to this case reviewed the original complaint for legal sufficiency. In his order of March 10, 2009, the magistrate judge noted that a civil-rights complaint requires allegations showing the personal involvement of the named defendants, and Plaintiff had failed to make those allegations. The magistrate judge did not note any other deficiency in the original complaint. The order granted Plaintiff leave to file an amended complaint by March 30, 2009, making the necessary allegations of personal involvement against "any and all defendants" Plaintiff "wishe[d] to name in this action." The order required the amended complaint to be a complete and entirely new pleading. In part, the order also required Plaintiff to comply with Fed. R. Civ. P. 8(a), 10(b), and 8(e).

Plaintiff moved for an extension of time to file the amended complaint, on the basis in part that he had been transferred to Franklin County Prison. The magistrate judge extended the deadline to April 24, 2009.

Plaintiff filed his amended complaint on April 8, 2009. It named as defendants Warden DeRose, the Dauphin County Prison, and correctional officer (CO) Timothy. As to the personal involvement of each defendant, Plaintiff alleges that the prison is where the incident occurred, that Timothy was the officer on duty who reported the incident and "ordered the lock down and searches which was (sic) handed down by Warden DeRose," and that "Warden DeRose was on the block that told (sic) Correctional Officer . . . Timothy to lockdown the block[,] search[,] and remove all belongings." (Doc. 13, Am. Compl. ¶ 2(c)).

Plaintiff then made the following claims for the period of lockdown. First, his First Amendment right to the free exercise of religion was violated because he had "no access to [a] Bible or religious mass." (Id., ¶¶ 3 and 4). Second, his First Amendment right of access to the courts was violated because he was denied "access to legal documents," and his "legal mail and material" was "interfered with," which "caused [him] to plea[d] guilty to [his] charge." (Id. ¶ 4). Third, his Eighth Amendment rights were violated in the following ways: (1) he was denied "certain hygiene items," (id. ¶ 3(a)), "no towel, no toilet paper, no water for 24 hrs . . ." (id. ¶ 5);*fn2 (2) he was allowed "no phones" or "visits" to keep in contact with his family, (id.), (3) correctional officers "intentionally or recklessly" engaged in "extreme and outrageous conduct" . . . "during daily cell searches" and when taking Plaintiff to the showers "barefoot and handcuffed with shackles . . . ." (Id. ¶ 6). Fourth, his due-process rights were violated because "no charges" were ever brought outside the prison and Plaintiff had "no disciplinary hearing until after 60 days." (Id. ¶ 5). No demand for damages or any other type of relief was made in the amended complaint.

On April 22, 2009, upon review of the amended complaint, the magistrate judge noted that Plaintiff had failed in part to comply with his March 10, 2009, order because the amended complaint had not been drafted so that it could stand on its own, as Plaintiff was apparently relying on factual averments in the original complaint. The magistrate judge then decided that the case could proceed on the basis of the original and the amended complaint and ordered service of both pleadings.*fn3

On June 22, 2009, Defendants filed a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6), and a brief in support was filed on July 7, 2009. Plaintiff filed no brief in opposition, which was due on July 26, 2009, as required by the version of Local Rule 7.6 then in effect.

Some five weeks after Plaintiff's opposition was due, on September 1, 2009, the case was reassigned to the magistrate judge currently handling the matter. On the same day, the magistrate judge issued an order requiring Plaintiff to respond to the motion to dismiss by September 25, 2009, or be deemed not to oppose the motion. The magistrate judge attached a copy of the defendants' motion and supporting brief to the order.

On September 15, 2009, Plaintiff filed a motion for extension of time to oppose the dismissal motion, asserting that the dismissal motion had been served on him on September 12, 2009. By way of an order dated September 18, 2009, the magistrate judge granted the motion, extending the deadline to October 13, 2009. On September 28, 2009, this order was returned to the court, marked on the envelope in what appears to be standard postal service typewritten form: "Return to Sender--Refused--Unable to Forward." (Doc. 29). Plaintiff did not file any opposition to the dismissal motion.

On October 19, 2009, the magistrate judge submitted the report and recommendation we are considering here. The report recommends the following. First, Plaintiffs' claim in his original complaint for damages in the amount of $25 million should be stricken because it ...


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