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Anthony Haskins v. Dominick Derose

May 20, 2011

ANTHONY HASKINS, PLAINTIFF
v.
DOMINICK DEROSE, TOM TOOLAN AND LAURA FISHEL, DEFENDANTS



The opinion of the court was delivered by: (mannion, M.J.)

(JONES, D.J.)

REPORT AND RECOMMENDATION *fn1

Presently pending before the court are: (1) an unopposed motion to dismiss the plaintiff's complaint filed on behalf of defendants Toolan and Fishel, ("Primecare defendants"), (Doc. No. 17), and (2) an unopposed motion to dismiss the plaintiff's complaint filed on behalf of defendant DeRose, (Doc. No. 21). Based upon the court's review of the record, it is recommended that both motions be denied in part and granted in part, and the plaintiff's complaint be dismissed.

On December 9, 2010, the plaintiff, currently an inmate at the State Correctional Institution, Camp Hill, Pennsylvania, filed the instant civil rights action pursuant to 42 U.S.C. §1983 in which he alleges that he received inadequate medical treatment. (Doc. No. 1). On the same day, the plaintiff filed the appropriate application to proceed in forma pauperis, (Doc. No. 2), and authorization form, (Doc. No. 3). As a result, a financial administrative order was issued. (Doc. No. 6).

By order dated January 10, 2011, it was directed that process issue. (Doc. No. 7).

On February 23, 2011, the Primecare defendants filed their motion to dismiss the plaintiff's complaint, (Doc. No. 17), along with a brief in support thereof, (Doc. No. 18).

On March 25, 2011, defendant DeRose filed his motion to dismiss the plaintiff's complaint, (Doc. No. 21), along with a brief in support thereof, (Doc. No. 22).

As of the date of this report, the plaintiff has failed to respond to either of the pending motions to dismiss. In light of the plaintiff's pro se status, however, the motions will be give a merits review pursuant to Stackhouse v. Mazurkiewicz, 951 F.2d 29 (3d Cir. 1991).

The defendants' motions to dismiss are brought pursuant to the provisions of Fed.R.Civ.P. 12(b)(6). In deciding a motion to dismiss brought pursuant to Rule 12(b)(6), the court must accept as true all of the factual allegations in the complaint, Erickson v. Pardus, 551 U.S. 89 (2007), and all reasonable inferences permitted by the factual allegations, Watson v. Abington Twp., 478 F.3d 144, 150 (3d Cir. 2007), viewing them in the light most favorable to the plaintiff, Kanter v. Barella, 489 F.3d 170, 177 (3d Cir. 2007). If the facts alleged by the plaintiff are sufficient to "raise a right to relief above the speculative level" such that the plaintiff's claim is "plausible on its face," dismissal of the complaint is inappropriate. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 570 (2007); Victaulic Co. v. Tieman, 499 F.3d 227, 234 (3d Cir. 2007). See Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (explaining a claim has "facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged"). However, a court is "not bound to accept as true a legal conclusion couched as a factual allegation." Id. at 1950 (quoting Twombly, 550 U.S. at 555). Moreover, a simple recitation of the elements of a cause of action supported by nothing more than conclusory statements is insufficient. Id. at 1949 (citing Twombly, 550 U.S. at 555).

A pro se complaint should be construed liberally, Dluhos v. Strasberg, 321 F.3d 365, 369 (3d Cir. 2003), and "must be held to less stringent standards than formal pleadings drafted by lawyers," Erickson, 551 U.S. at 94 (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)). Before dismissing such a complaint as merely deficient, a court must grant leave to amend. See, e.g., Fletcher-Harlee Corp. v. Pote Concrete Contractors, Inc., 482 F.3d 247, 252 (3d Cir. 2007); Weston v. Pennsylvania, 251 F.3d 420, 428 (3d Cir. 2001);

Shane v. Fauver, 213 F.3d 113, 116 (3d Cir. 2000). "Dismissal without leave to amend is justified only on the grounds of bad faith, undue delay, prejudice, or futility." Alston v. Parker, 363 F.3d 229, 236 (3d Cir. 2004).

In his complaint, the plaintiff allege that, on August 15, 2010, he had a tooth pulled and the dentist, defendant Fishel, left the root inside of his mouth. The plaintiff indicates that he was given pain medication and was told that defendant Fishel would return to schedule an appointment for the plaintiff to see an oral surgeon.

On September 12, 2010, when defendant Fishel had not returned, the plaintiff alleges that he filed a grievance to see an oral surgeon. He indicates that during the time of his initial treatment and the time of his grievance he continuously received pain pills and antibiotics.

When no response was received to his initial grievance, on November 1, 2010, the plaintiff alleges that he filed a second grievance indicating that he was in "excruciating pain" and that he was getting headaches. Three days later, on November 4, 2010, the plaintiff was seen by defendant Fishel for follow-up. At that time, the plaintiff alleges that defendant Fishel informed him that his condition was not such that he needed to see an oral surgeon. The plaintiff alleges that defendant Fishel, as well as defendant Toolan, informed him that the root would dissolve or push out on its own.

In his complaint, the plaintiff alleges that the defendants acted with deliberate indifference to his medical needs in violation of his Eighth Amendment rights. He is seeking declaratory and injunctive relief, as well as compensatory and punitive damages. The plaintiff requests in his complaint that the court consider his claims "even though the prison grievance system was not completed."

In their motion to dismiss the plaintiff's complaint, the Primecare defendants argue that the plaintiff's complaint should be dismissed because he has admittedly failed to exhaust his administrative remedies and because he has failed to state a claim upon which relief can be granted.

Initially, with respect to the defendants' argument that the plaintiff failed to exhaust his administrative remedies, the Prison Litigation Reform Act, 42 U.S.C. §1997e(a), provides that "no action shall be brought with respect to prison conditions under section 1983 . . . by a prisoner confined in any jail, prisons, or other correctional facility until such administrative remedies as are available are exhausted."

Here, the plaintiff's complaint makes a plausible claim that he exhausted his administrative remedies. Although he indicates that the grievance process was not complete, he also alleges that he filed various grievances to which he never received a response. Assuming these facts to be true, as the court must do on a motion to dismiss, this is sufficient for exhaustion purposes. See Carter v. Morrison, 2007 WL 4233500 (E.D.Pa. Nov. 28, 2007)*fn2 ("a plaintiff who files grievances and receives no response has exhausted his or her remedies"). As such, the Primecare defendants' motion to dismiss the plaintiff's complaint for failure to exhaust his administrative remedies should be denied.

The Primecare defendants also argue that the plaintiff has failed to sufficiently state an Eighth Amendment claim upon which relief can be granted. Here, the court agrees.

The Eighth Amendment is violated with respect to the provision of medical care where a defendant acts with "deliberate indifference" to a plaintiff's "serious medical needs." See Estelle v. Gamble, 429 U.S. 97, 104 (1976). A prison official acts with deliberate indifference when he or she "knows of and disregards an excessive risk to inmate health or safety." Natale v. Camden Cnty. Corr. Facility, 318 F.3d 575, 582 (3d Cir. 2003) (quoting Farmer v. Brennan, 511 U.S. 825, 837 (1994)). Deliberate indifference may be evidenced by an intentional refusal to provided care, delayed provision of medical treatment for non-medical reasons, denial of reasonable requests for treatment that results in suffering or risk of injury, Durmer v. O'Carroll, 991 F.2d 64, 68 (3d Cir. 1993), or by persistent conduct in the face of resultant pain and risk of permanent injury, White v. Napoleon, 897 F.2d 103, 109 (3d Cir. 1990).

However, the mere misdiagnosis of a condition or medical need, or negligent treatment provided for a condition, is not actionable as an Eighth Amendment claim. Estelle, 429 U.S. at 106. "Indeed, prison authorities are accorded considerable latitude in the diagnosis and treatment of prisoners." Durmer, 991 F.2d at 67 (citations omitted). In the prison context, deliberate indifference is generally not found when some significant level of medical care has been offered to the inmate. Clark v. Doe, 2000 WL 1522855, at *2 (E.D.Pa. Oct.13, 2000) ("courts have consistently rejected Eighth Amendment claims where an inmate has received some level of medical care"). In fact, courts within the Third Circuit have consistently rejected Eighth Amendment claims that are based upon the level of professional care that an inmate received. See, e.g., Ham v. Greer, 269 F. App'x 149 (3d Cir. 2008); Bronson v. White, 2007 WL 3033865 (M.D.Pa. Oct. 15, 2007); Gindraw v. Dendler, 967 F.Supp. 833 (E.D.Pa.1997). Thus, on an Eighth Amendment claim, any attempt to second-guess the propriety or adequacy of a particular course of treatment is disavowed by courts since such determinations remain a question of sound professional medical judgment. Inmates of Allegheny County Jail v. Pierce, 612 F.2d 754, 762 (3d Cir. 1979) (quoting Bowring v. Godwin, 551 F.2d 44, 48 (4th Cir.1977)).

An inmate's dissatisfaction with a course of medical treatment, standing alone, also does not give rise to a viable Eighth Amendment claim. See Taylor v. Norris, 36 Fed. Appx. 228, 229 (8th Cir. 2002) (deliberate indifference claim failed when it boiled down to a disagreement over recommended treatment and decision not to schedule a doctor's appointment); Abdul-Wadood v. Nathan, 91 F.3d 1023, 1024-35 (7th Cir. 1996) (inmate's disagreement with course of treatment fell short of demonstrating deliberate indifference). "[T]he exercise by a doctor of his professional judgment is never deliberate indifference." Gindraw v. Dendler, 967 F.Supp. 833, 836 (E.D.Pa. 1997) (citations omitted).

Here, there is no indication of deliberate indifference on the part of the Primecare defendants. In fact, the only claim of involvement by defendant Toolan was that he agreed with defendant Fishel that the root would either dissolve or push out by itself. As to defendant Fishel, according to the plaintiff's complaint, she performed the procedure and provided the plaintiff with pain medication. Although she indicated that she would return to schedule the plaintiff for a consult with an oral surgeon, she did not. Instead, she followed up with the plaintiff and, upon examination, opined that the plaintiff did not need an oral surgeon consult. In the meantime, while the plaintiff was awaiting the follow-up, his complaint indicates that he was provided with pain medication and antibiotics. There is no indication from the plaintiff's complaint that defendant Fishel was made aware of the grievances filed by him in which he indicated that he was having pain and headaches due to his condition. In light of all of this, there is no indication that defendant Fishel was deliberately indifferent to the plaintiff's medical needs. Instead, it appears that the plaintiff is simply disagreeing with the treatment provided by defendant Fishel. On this basis, his complaint should be dismissed.

With respect to the motion to dismiss filed on behalf of defendant DeRose, he too argues that the plaintiff's complaint should be dismissed for his failure to exhaust administrative remedies. For the reasons set forth above, defendant DeRose's motion to dismiss on this basis should be denied.

Moreover, defendant DeRose argues that the plaintiff has failed to state a claim against him upon which relief can be granted in that the plaintiff has failed to set forth any allegations in the body of his complaint which would indicate that defendant DeRose violated the plaintiff's constitutional rights.

To state a claim under §1983, the plaintiff must show that the defendants, acting under color of state law, deprived him of a right secured by the Constitution or laws of the United States. 42 U.S.C. §1983; Morse v. Lower Merion School District, 132 F.3d 902 (3d Cir. 1997); Maine v. Thiboutot, 448 U.S. 1 (1980). Liability under §1983 is personal in nature and can only follow personal involvement in the alleged wrongful conduct shown through specific allegations of personal direction or of actual knowledge and acquiescence. Robinson v. City of Pittsburgh, 120 F.3d 1286 (3d Cir. 1997) (citing Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988)). Moreover, relief cannot be granted against a defendant pursuant to §1983 based solely on the theory of respondeat superior or the fact that the defendant was the supervisor or superior of the person whose conduct actually deprived the plaintiff of one of his federally protected rights under color of state law. Rouse v. Plantier, 182 F.3d 192 (3d Cir. 1999); Hampton v. Holmesburg Prison Officials, 546 F.2d 1077 (3d Cir. 1976); Goode v. Rizzo, 506 F.2d 542, 550 (3d Cir. 1974), rev'd on other grounds, Rizzo v. Goode, 423 U.S. 362 (1976).

Upon review of the plaintiff's complaint, other than naming defendant DeRose in the caption of his complaint, the plaintiff has failed to set forth any allegations with respect to him. It would appear that the plaintiff is attempting to name defendant DeRose based upon a theory of respondeat superior. As such, defendant DeRose's motion to dismiss the plaintiff's complaint should be granted on this basis.

On the basis of the foregoing, IT IS RECOMMENDED THAT:

(1) the Primecare defendants' unopposed motion to dismiss the plaintiff's complaint, (Doc. No. 17) , be DENIED to the extent it is argued that the plaintiff failed to exhaust his administrative remedies and GRANTED to the extent it is argued that the plaintiff has failed to state a claim upon which relief can be granted; and (2) defendant DeRose's unopposed motion to dismiss the plaintiff's complaint, (Doc. No. 21) , be DENIED to the extent that it is argued that the plaintiff failed to exhaust his administrative remedies and GRANTED to the extent that it is argued that the plaintiff has failed to state a claim upon which relief can be granted.

Malachy E. Mannion

MALACHY E. MANNION United States Magistrate Judge

Not Reported in F.Supp.2d, 2007 WL 4233500 (E.D.Pa.) (Cite as: 2007 WL 4233500 (E.D.Pa.)) Gary's Motion to Dismiss pursuant to Fed R. Civ. Only the Westlaw citation is currently available. P. 12(b)(6) (Docket No. 56) and Plaintiff's Declaration in Opposition (Docket No. 69); Defendant United States District Court, Taylor's Motion to Dismiss pursuant to Fed R. Civ. E.D. Pennsylvania. P. 12(b)(6) (Docket No. 57) and Plaintiff's Declara-Dana CARTER, Plaintiff, tion in Opposition (Docket No. 67); Defendant v. Carey's Motion to Dismiss pursuant to Fed R. Civ. Ronald MORRISON, Manny Arroyo, Bernon Lane, P. 12(b)(6) (Docket No. 61) and Plaintiff's Declara- Pamela Brown, Patricia Johnson, Lenora King, tion in Opposition (Docket No. 68); and Defendants Lauren Troppauer, Junius Russell, Community Community Education Centers and Monique Ro-Education Centers, Monique Rogers, Jose Al- gers's Motion for Joinder of Defendants King, varado, Elda Casillas, Freddie Harris, Thomas Troppauer, Russell, Morrison, Arroyo, Lane, and Costa, Paul O'Connor, Lawrence Murray, Dale Johnson's Motion to Dismiss pursuant to Evans, Lauren Taylor, Mark Carey, Willie Jones, Fed.R.Civ.P. 12(b)(6) and Motion to Strike the Julie Stowitzky, Thomas Pekar, Jeffrey Beard, Amended Complaint pursuant to Fed.R.Civ.P. 12(f)

Evans Gary, Defendants. . For the reasons stated below, Defendants' Motions to Dismiss are GRANTED in part and DENIED in

Civil Action No. 06-3000. part, and the Motion to Strike the Amended Com-Nov. 28, 2007. plaint is DENIED.

Dana Carter, Philadelphia, PA, pro se. I.

BACKGROUND

Carla P. Maresca, Sheryl L. Brown, Deasey, Ma- Plaintiff, Dana Carter, proceeding pro se, honey & Valentini, Ltd., Philadelphia, PA, for De- makes a number of claims against twenty-three defendants. fendants. These claims arise out of Plaintiff's confinement in the Joseph E. Coleman Center (the Beth Anne Smith, Office of Attorney General, Phil- "Coleman Center"), a halfway house (known as a adelphia, PA, for Defendants. community corrections center) where Plaintiff was serving a portion of his criminal sentence imposed in Pennsylvania state court.

MEMORANDUM

BUCKWALTER, Senior District Judge. A. THE ALLEGATIONS

*1 Presently before the Court are Defendants Because these motions are filed under Rule of O'Connor, Alvarado, and Casillas's Motion to Dis- Civil Procedure 12(b)(6), the Court must accept as miss, in part, pursuant to Fed.R.Civ.P. 12(b)(6) ( true all of Plaintiff's allegations.FN1 Docket No. 41), Plaintiff's Answer thereto (Docket No. 46), and Defendants O'Connor, Alvarado, and FN1. The Coleman Defendants have arCasillas's Reply to Plaintiff's Answer (Docket No. gued that the amended complaint should be 47); Defendants King, Troppauer, Russell, Morris- stricken under Federal Rule of Civil Proon, Arroyo, Lane, and Johnson's Motion to Dismiss cedure 12(f) because it is a supplement to pursuant to Fed.R.Civ.P. 12(b)(6) and Motion to the original complaint, and procedure re-Strike the Amended Complaint pursuant to quires one cohesive complaint. (Mem. Fed.R.Civ.P. 12(f) ( Docket No. 55), and Plaintiff's Supp. Defs.' Morrison, Arroyo, Lane, Declaration in Opposition (Docket No. 70); De- Johnson, King, Troppauer and Russell's fendants Costa, Murray, Stowitzky, Beard, and Mot. Strike Pursuant to F.R.C.P. 12(f),or © 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

Mot. Dismiss Pursuant F.R.C.P. 12(b) (6), During his stay at the Center, Plaintiff volunat 7-8.) Because Plaintiff proceeds pro se, teered in the kitchen. There was no bathroom in the and courts have an obligation to read a pro kitchen, and kitchen workers who needed to use the se litigant's pleadings liberally, this motion bathroom were directed to go outside, behind a is denied, and the Court will read dumpster. On July 21, 2004, Plaintiff was bitten by Plaintiff's amended complaint as he inten- a spider while relieving himself. The spider bite ded, as a supplement to the original com- resulted in abscesses that required medical treat-plaint. ment, including minor surgery. (Id. ¶¶ 26-30.) This risk was well known, yet Defendants Arroyo, MorOn March 1, 2004, Plaintiff was paroled to the rison, and Lane, all Center employees, as well as Coleman Center (the "Center") from the State Cor- the Community Education Center (CEC), rerectional Institute at Greene (SCI-Greene), a state peatedly refused to install a restroom. (Pl.'s Aff. 2.) penitentiary. (Compl.¶ 9.) Upon his arrival, he was After this incident, Plaintiff filed a grievance about given the Resident Handbook, which listed the Cen- the lack of a restroom, which went unanswered. ter's policies, procedures, and services. (Id. ¶ 9.) (Compl.¶¶ 28-29.) Plaintiff was bitten by another Plaintiff immediately began to question why certain spider on October 21, 2005, this time in his sleep-services were not being offered as promised in the ing quarters. He filed another grievance that again Handbook. Plaintiff also assisted other residents in went unanswered. That bite also resulted in abs-filing grievances about policy violations and un- cesses and medical treatment. (Pl.'s Aff. 5-6.) provided services. Writing to local politicians on his own behalf and on the behalf of others, Plaintiff On September 1, 2004, Defendants Alvarado advocated for change at the Center. (Pl.'s Aff. 1.) and Casillas arrested Plaintiff for technical parole violations. (Compl.¶¶ 31-33.) Plaintiff was held in a On July 1, 2004, Defendants Arroyo, King, and cold, smelly cell without access to a telephone, be-Brown, all employees at the Center, called Plaintiff fore being moved more than a day later to the State into King's office. They told Plaintiff that he was Correctional Institute at Graterford becoming a problem, and they suggested that he (SCI-Graterford) while he awaited a parole hearing. stop the "complaining and adjust like the rest." (Pl.'s Aff 3.) On September 8, 2004 Alvarado vis-Plaintiff did not stop raising his concerns, however. ited Plaintiff and advised him to plead guilty in or(Compl.¶ 17.) der to avoid a twelve month "parole hit." Plaintiff refused. (Compl.¶¶ 38.) He remained at SCI-*2 On the morning of July 11, 2004, Plaintiff Graterford until January 19, 2005, when he was heard a gunshot as he was leaving the Center on a transferred to SCI-Greene-still awaiting his parole social pass. He telephoned the police from a pay hearing. Upon arriving at SCI-Greene, Plaintiff was phone and then left for the day. When he returned, told he would be reparoled to the Coleman Center, he learned that a resident had been killed. Upon again under the supervision of Alvarado. No hear-seeing Defendant Alvarado, his parole agent, ing was ever given, and Plaintiff was not found Plaintiff told Alvarado that he had reported the guilty of any parole violations. (Compl.¶¶ 42-45.) shooting to the police, and because the shooting Plaintiff later determined that the technical viola-frightened him, Plaintiff requested a transfer. Al- tions that had been asserted were not violations at varado replied that Plaintiff should have minded his all, that in fact the complaint had been entirely fabown business and that he would not be transferred. ricated to retaliate against him for raising concerns Plaintiff then sent an official transfer application to at the Center. (Pl.'s Aff. 4.)

Arroyo, who was the Director of the Center.

Plaintiff never received a response. (Id. ¶¶ 19-25.) Upon his return to the Center, King told Plaintiff that he would have to start over at phase withdrew twenty percent of Plaintiff's earnings one at the Coleman Center, meaning the progress from each paycheck. There was nothing in the he made and privileges he attained prior to the pa- Handbook that mandated these deductions. Plaintiff role violation arrest were lost. Plaintiff protested asserts that Center employees were keeping these this decision since he had not been convicted of any funds for themselves. (Compl.¶¶ 11-14.) parole violations. King told Plaintiff that the decision had been made by Arroyo. Yet other resid- On July 14, 2005, Plaintiff was again arrested ents in similar situations were permitted to stay in for technical violations, this time on the false their previous phase. On February 10, 2005, charge that a phone was found by Defendant King Plaintiff requested that King ask Arroyo why he in Plaintiff's bed. The Center confined Plaintiff in had to start over from phase one. King asked Ar- the PennCapp unit, a part of the Coleman Center royo, but no reason was ever provided. Plaintiff where violators are confined and receive counsel-again formally requested from Arroyo that he be ing. On July 20, 2005, Alvarado visited Plaintiff. transferred. His request again went unanswered. ( He urged Plaintiff to plead guilty and thus avoid Id.) another stay at SCI-Graterford where he might remain until the expiration of his maximum sentence. *3 The stress from these events mounted and Under Alvarado's pressure, Plaintiff pleaded guilty. culminated in April 2005 when Plaintiff checked As a result, Plaintiff spent ninety days in the Pen-himself into the psychiatric ward at Episcopal Hos- nCapp program. (Compl.¶¶ 62-65.) While he was at pital where he stayed for one week. The hospital PennCapp, Arroyo and Morrison did not allow treated Plaintiff for depression and prescribed drugs Plaintiff to leave for doctors' appointments even that Plaintiff continues to take on a regular basis. though they permitted others in PennCapp to keep (Compl.¶¶ 53-56.) their appointments. (Id. ¶¶ 68-69.)

During this time, and at other times throughout In August, 2005, Arroyo resigned as Director his residence at the Coleman Center, Plaintiff sub- of the Coleman Center. Defendant Lane replaced mitted home plans. Based on the Court's best under- him. (Pl.'s Aff. 5.) standing of Plaintiff's allegations, a home plan consists of a request by a resident to be allowed to live Alvarado visited Plaintiff in PennCapp on outside the Center while on parole. The Center em- September 19, 2005. Plaintiff pleaded with Alployees and/or the parole agents then investigate varado to be transferred once he finished his ninety the plan to ensure that the resident will be moving days there. Alvarado agreed. However, when into a stable home. Plaintiff submitted many home Plaintiff was released, he once again had to report plans that were never investigated by anyone. (Id. ¶ to the Coleman Center-with Alvarado as his parole 57.) agent and phase one as his starting point. Defendant Troppauer was his new counselor. In response to

In May 2005, Plaintiff completed a course in his complaints about starting over again, Lane and waste removal. Thereafter, he began working at the Alvarado merely told him that he was lucky not to Philadelphia Naval Base, where he was paid $12.00 be back in prison. (Id.; compl. ¶¶ 71-74.) an hour. After just his third paycheck, Alvarado forced Plaintiff to quit his job, stating inaccurately *4 The problems persisted after Plaintiff's re-that Plaintiff was required to quit because the Naval turn. On December 13, 2005, Plaintiff was punished Base was unaware of his parole status. As a result, for unsubstantiated complaints made to the Center Plaintiff returned to his previous position in a fur- by Plaintiff's acquaintance from outside the Center. niture factory, earning $5.50 an hour. (Pl.'s Aff. As a result, Plaintiff was confined at the Center 4-5.) At all times during his residence, the Center during the holiday season. (Pl.'s Aff. 6.)

Also in December, a supervisor was fired in re- On April 25, 2006, Plaintiff had his parole response to complaints by Plaintiff and other resid- vocation hearing. Plaintiff still awaits the final deents, which created rising tension between the staff termination from this hearing. (Id.) and residents at the Center. Those who had complained about the fired supervisor were systematic- Plaintiff commenced this action on July 10, ally forced to leave the Center-sent back to prison 2006. or to PennCapp. (Id.) On January 9, 2006, Defendant Russell-who had only been hired as an Opera- B. THE CLAIMS tions Counselor as of December 19, 2005-searched After a review of Plaintiff's pleadings and De-Plaintiff as he arrived back to the Center from fendants' responses, the Court has determined that classes. Russell's search was "unprofessional and Plaintiff is making the following claims: rude." (Id.). Plaintiff filed another grievance. When 1. A series of damages claims and requests for Russell found out about the grievance, he filed a declaratory relief under 42 U.S.C. § 1983 for vi"special report" falsely claiming that Plaintiff and olations of Plaintiff's First, Fourth, Fifth, Eighth, two other residents had threatened him while con- and Fourteenth Amendment rights; ducting the search. Morrison assisted in filing the special report. On January 11, Plaintiff, along with *5 2. A damages claim under 42 U.S.C. § several others, was arrested for making the threats. 1985(3) for conspiracy; (Id. at 7.) Alvarado and Casillas were also involved in this plan to arrest those who had complained. Of 3. A claim under the Privileges and Immunities those arrested, at least three were African Americ- Clause of Article IV of the U.S. Constitution; an. Unlike residents of other races, they were not given the opportunity to have a case conference or 4. A request that the Court declare unconstitu-explain themselves. After the arrest, Plaintiff was tional 37 Pa. Cons.Stat. §§ 71.1(a) and 94.3; taken back to SCI-Graterford. (Id.) 5. A damages claim under the Racketeer Influ-

Alvarado visited Plaintiff, and he again sugges- enced and Corrupt Organizations Act (RICO), 18 ted that U.S.C.FN2 Plaintiff plead guilty, this time with the §§ 1961 et seq; promise to spend forty-five days at SCI-Graterford and return "back on track." Plaintiff refused. (Id.) FN2. Plaintiff now concedes that his On January 24, 2006 there was an initial parole claims under the Privileges and Immunity hearing. Russell gave testimony, and the charges Clause of Article IV, under RICO, and his were not dismissed. After the hearing, Defendant request that the Court declare 37 Pa. Harris, another Center employee, told Plaintiff that Cons.Stat. §§ 71.1(a) and 94.3 unconstitu"they have wanted to get you for a long time." Har- tional all lack merit. (See Pl.'s Answer to ris would not say who "they" were. Plaintiff learned Original Commonwealth Defs.' Mot. Dis-from his follow residents that Morrison had a list of miss Pl.'s Am. Compl. 3, 10.) Therefore, residents he wanted removed from the Center. these claims are dismissed as to all the de-Those who had complained about the fired super- fendants. visor were each on this list. (Id.) On January 26, 2006, Plaintiff sent a letter to the Center asking for 6. A series of damages claims under state law, inan update on his grievance of January 9, 2006 and cluding breach of duty, abuse of authority, abuse for his belongings and money the Center allegedly of process, malicious prosecution, false arrest, still owed him. No response ever came. (Id. at 8.) false imprisonment, intentional infliction of mental and emotional distress, defamation, breach of contract, and conversion.FN3 Pl.'s Compl.)

FN3. The Court has interpreted Plaintiff's FN4. Plaintiff now concedes that his claims of "destruction of property" and claims against O'Connor lack merit. (See "unauthorized appropriation of funds" as a Pl.'s Answer to Original Commonwealth conversion claim. Defs.' Mot. Dismiss Pl.'s Am. Compl. 12.)

Therefore, all the claims against O'Connor

7. A request for injunctive relief requiring De- are dismissed. fendants to return Plaintiff's lost wages and property; to end Defendants Alvarado's and Casillas's The second group, referred to as the oversight of Plaintiff; and to prevent the defend- "Additional Commonwealth Defendants," includes ants from committing "further misconduct, retali- Jeffrey A. Beard and Evans Gary, Officials in the ation, racial discrimination, or official abuse." DOC; and Lawrence Murray, Julie Stowitzky, and (Am.Compl.8.) Thomas Costa, Parole Board employees. These defendants were added in Plaintiff's Amended Com-C. THE DEFENDANTS AND THE GROUNDS plaint. (Am.Compl.¶¶ 5-6.)

FOR DISMISSAL

Nineteen Defendants have submitted motions The motion to dismiss on behalf of the Addito dismiss under Federal Rule of Civil Procedure tional Commonwealth Defendants is largely the Rule 12(b)(6). In some cases, the arguments over- same, with the following additional arguments set lap, and in others, groups of defendants make dif- forth: (1) that Plaintiff fails to state a claim for fering arguments. This section delineates the groups which relief may be granted under the First and of defendants and their asserted grounds for dis- Fourth Amendments; and (2) that Plaintiff's section missal. 1983 claims fail against the Additional Commonwealth Defendants because they do not state any The first group, referred to as the personal involvement by the Additional Common-"Commonwealth Defendants," includes Paul wealth Defendants in the alleged constitutional O'Connor, the Director of the Bureau of Com- wrongdoing. (See Additional Commonwealth Defs.' munity Corrections within the Department of Cor- Mot Dismiss Pl.'s Am. Compl.) rections (DOC); Jose Alvarado, a Parole Agent for the Pennsylvania Board of Probation and Parole *6 Defendants Lauren Taylor and Mark Carey (the "Parole Board"); and Elda Casillas, a Parole each submitted their own motions to dismiss. In Supervisor for the Parole Board. each case, they set forth the same general arguments, but these parties argue additionally that beThe Commonwealth Defendants assert (1) that cause there are no allegations of personal involve-Plaintiff fails to state a claim upon which relief may ment, the section 1983 claims must fail. (See Def. be granted under the Fifth, Eighth, and Fourteenth Taylor's Mot Dismiss Pl.'s Am. Compl.; Def. Amendments, the Privileges and Immunities Carey's Mot Dismiss Pl.'s Am. Compl.)

Clause, and RICO; (2) that Plaintiff's conspiracy claim under section 1985(3) fails because the com- The third group, referred to as the "Coleman plaint and amended complaint lack the required Defendants," consists of Ronald Morrison, Manny specificity; and (3) that sovereign immunity bars Arroyo, Bernon Lane, Nicole Johnson, Lenora Plaintiff's state law claims. In addition, the Com- King, Lauren Troppauer, and Junius Russell, all of monwealth Defendants assert that there are no cog- whom were employed at the Coleman Center durnizable claims ...


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