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Bennie Miller Tabb, Iii v. Deputy Hannah

July 30, 2012

BENNIE MILLER TABB, III, PLAINTIFF
v.
DEPUTY HANNAH, ET AL., DEFENDANTS



The opinion of the court was delivered by: Judge Caldwell

MEMORANDUM

I. Introduction

On May 25, 2010, plaintiff, Bennie Miller Tabb, an inmate at the Smithfield State Correctional Institution (SCI-Smithfield) in Huntingdon, Pennsylvania, filed this pro se civil-rights action. The court screened the original complaint pursuant to 28 U.S.C. § 1915, and directed Tabb to file an amended complaint. The Amended Complaint was filed on July 30, 2010. Presently before the court is Defendants' Motion to Dismiss the Amended Complaint and for a More Definite Statement. (Doc. 23). Tabb did not oppose the motion.*fn1

For the reasons that follow, the defendants' motion for a more definite statement will be denied, and the motion to dismiss granted in part and denied in part.

II. Standard of Review

In considering a motion to dismiss under Fed. R. Civ. P. 12(b)(6), "[w]e 'accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief.'" Byers v. Intuit, Inc., 600 F.3d 286, 291 (3d Cir. 2010) (quoted case omitted). A court may consider documents that are attached to or submitted with the complaint, Pryor v. Nat'l Collegiate Athletic Ass'n, 288 F.3d 548, 560 (3d Cir. 2002), and matters of public record, Delaware Nation v. Pennsylvania, 446 F.3d 410, 413 n.2 (3d Cir. 2006), including court filings. See Churchill v. Star Enterprises, 183 F.3d 184, 190 n.5 (3d Cir. 1999) (citing Pension Benefit Guaranty Corp. v. White Consolidated Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993)).

"To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.' " Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 1974, 167 L.Ed.2d 929 (2007)).

In addition, a complaint must comply with the requirements of Fed. R. Civ. P. 8(a)(2) which states that a complaint need only contain "a short and plain statement of the claim." Detailed factual allegations are not required, Twombly, 550 U.S. at 555, 127 S.Ct. at 1964, but a complaint has to plead "enough facts to state a claim to relief that is plausible on its face." Id. at 570, 127 S.Ct. at 1974. Rule 8 demands "more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Iqbal, 556 U.S. at 678, 129 S.Ct. at 1949. "The plausibility standard is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id. (quoting Twombly, 550 U.S. at 556, 127 S.Ct. at 1965). "[L]abels and conclusions" are not enough, Twombly, 550 U.S. at 555, 127 S.Ct. at 1964-65, and a court "is not bound to accept as true a legal conclusion couched as a factual allegation." Id., 127 S.Ct. at 1965 (quoted case omitted).

III. Background

To assist Tabb in filing his amended complaint, the Clerk of Court sent him two blank copies of this court's civil-rights complaint form. Tabb did not use the form. Instead, his Amended Complaint consists of eighteen single-spaced handwritten pages and sixty-nine pages of exhibits. See Doc. 14. There are no numbered paragraphs or short concise statements of facts, but the Amended Complaint is full of legal arguments and case citations.

The Amended Complaint alleges as follows. Tabb, a member of the Gangster Disciples gang, is housed in SCI-Smithfield's Restricted Housing Unit (RHU). In January 2010, CO Burnett labeled him a "rat and a snitch." (Doc. 14, Am. Compl. at p. 2 and p. 15).*fn2 Tabb believes CO Barnett's conduct placed his life in danger from other gang members, who told him he was a dead man when he enters general population. (Doc. 14-3 at p. 3).

Tabb sent a request slip to Security Capt. Myers, a request to staff member to his Unit Manager Burks, and one to his Counselor Mr. Parks, all regarding Barnett's conduct and requesting to be separated from him. (Doc. 14 at p. 2). He also filed a grievance with Ms. Holibaugh, the grievance coordinator. (Doc. 14-3 at p. 1). Lt. Williams investigated the grievance and denied it. (Id. at p. 2). Tabb was dissatisfied with the investigation. (Doc. 14 at p. 3).

On June 12, 2010, almost a month after filing his Original Complaint in this court, Tabb was assaulted by his RHU cellmate Robert Davis. (Id.) Tabb avers this assault took place "because state officials on 6-2 and 2-10 shift on (KA1-Block) RHU is still labeling [him] a 'snitch and a rat.'" (Id. at p. 4). The following officers "conspire[d] with Officer G. Barnett in labeling him a 'snitch and rat'": CO Kennedy; R.E. Miller, Powell, Sgt. Britt, T. Dell, Ersek. Sgt. Sheets, Householder, S.P. Dell, Lt. Kohler, Lt. Crouch, McVay and Sgt. Arashrff. (Id.) On four occasions he notified members of the Program Review Committee (PRC), which was comprised of Deputy Hannah, Deputy Royer and Deputy Heaster, of CO Barnett's actions. (Doc. 14 at p. 6; Doc. 14-4 at pp. 1-4). He alleges all three PRC members were "on fair notice" of CO Barnett's actions and his need for protection but failed to act appropriately. (Doc. 14 at p. 7).

Tabb alleges he was subject to various act of retaliation because he filed institutional grievances. (Id.) The first act of retaliation was when he was moved to JB Block in March 2010. (Id. at p. 8). Next, he claims he received false misconducts from CO Moore,*fn3 CO Sulliman*fn4 and Mr. Park.*fn5 (Id.) He asserts a claim for retaliation against the following prison staff because "each played there (sic) part in" retaliating against him: Powell; Barnett; Hannah; Royer; Heaster; S.P. Dell; Smithy; Sulloman; Beard; Britt; Burks, Park; Crouchy; Dell; Kennedy; Rivello; Fisher; Kohler; Everhart; Robinson; Williams; Smeals; McCke; Varner; Miller; McVay; Ersek; Sheets; Householder and Abrashrff. (Doc. 14 at pp. 16-17).*fn6

Next Tabb alleges that on August 28, 2008, CO K. Powell confiscated his draft materials for a Post Conviction Relief Act (PCRA) petition, which he needed for filing a timely petition. (Doc. 14 at p. 9 and Doc. 14-2 at p. 4). He claims his documents were withheld for more than 120 days and not returned until after his filing deadline had expired. (Doc. 14 at p. 9). As a result, his January 2, 2009, PCRA petition was denied as untimely. (Id.)

Some background on this claim is found in Tabb v. Fisher, 2:11-CV-1243 (W.D. Pa.), Tabb's federal habeas petition filed under 28 U.S.C. § 2254.*fn7 After appointing Tabb counsel, an amended PCRA petition was filed, and the PCRA court conducted a hearing. In his amended PCRA petition, Tabb sought to justify the late filing of his petition pursuant to 42 Pa. Con. Stat. Ann. § 9545(b)(1)(i) by claiming prison officials had interfered with his ability to timely raise his claims as a result of their confiscation of his draft PCRA petition. See Tabb v. Fisher, 2:11-CV-1243 (W.D. Pa.), Doc. 23-18 at pp. 5-6, Amend. PCRA Pet. The trial court found no merit to this claim. See Tabb v. Fisher, 2:11-CV-1243 (W.D. Pa.), Doc. 23-23, Order Denying PCRA, Cmmwlth. v. Tabb, No. CR 382-2006 (Lawrence Cnty. Ct. Common Pleas, Sept. 17, 2009). The trial court held that:

[T]he Defendant could have begun preparing his PCRA petition as early as November 13, 2007 when the year clock began to toll. Defendant testified that his papers were not confiscated until August 28, 2008 - giving the Defendant over nine months to prepare his petition while the legal records were in his possession. Furthermore . . . the Defendant would have still been able to draft a PCRA without his records even though doing so might not be preferable to him. In fact, Defendant testified that he could recall specific facts that he used in his pro se petition and was able to recall relevant witness testimony.

Defendant also testified that he was able to use an appeal submitted on his behalf by his prior trial counsel to draft his pro se petition. (Id. at p. 8) (internal citations omitted). The Pennsylvania Superior Court affirmed the trial court, adding that: Tabb has failed to specify any claim that he was unable to discover because of his lack of access to his trial records. Indeed, Tabb testified that he drafted his pro se petition from memory in December of 2008 - before his records were returned to him. We are therefore left to conclude that Tabb's lack of access to his records for a period of time did not preclude him from discovering the claims he wished to raise on collateral review. We discern no error in the trial court's decision to dismiss Tabb's petition as untimely.

Tabb v. Fisher, 2:11-CV-1243 (W.D. Pa.), Doc. 23-30, Order Denying PCRA Appeal, Cmmwlth. v. Tabb, No. 1763 WDA 2009 (Pa. Super. Sept. 21, 2010). On March 30, 2011, the Pennsylvania Supreme Court denied Tabb's Petition for Allowance of Appeal. See Tabb v. Fisher, 2:11-CV-1243 (W.D. Pa.), Doc. 23-34, Cmmwlth. v. Tabb, No. 565 WAL 2010 (Pa. Super. Mar. 30, 2011). A Magistrate Judge issued an order on January 26, 2012, dismissing Tabb's federal habeas corpus petition as untimely. See Tabb v. Fisher, 2:11-CV-1243 (W.D. Pa.), Doc. 27.

Based on the above, the court gleans the following claims from Tabb's Amended Complaint: (1) In January 2010, CO Barnett labeled him a "rat and snitch," placing his life in danger; (2) once notified of CO Barnett's actions, Lt. Williams, Captain Myers, Lt. Rivillo, Counselor Park and Unit Manager Burks failed to properly investigate and address the matter; (3) members of the PRC failed to act upon Tabb's request to be separated from CO Barnett; (4) Superintendent Fisher, Major Robinson, Capt. Myers, Counselor Park, Unit Manager Burks, Lt. Williams, Lt. Crouch, Lt. Rivello, Deputy Hanna, Deputy Royer, Deputy Heaster, Ms. Hollibaugh, Ms. McCke and Secretary Beard "fail[ed] to tr[ain] and fail[ed] to protect" Tabb from assault by his cellmate Robert Davis; (5) RHU officers Kennedy, Miller, Powell, Sgt. Britt, T. Dell, Ersek, Sgt. Sheets, Householder, S.P. Dell, Lt. Kohler, Lt. Crouch, McVay and Sgt. Abrashrff, who work either the 6-2 or 2-10 shifts in the RHU, "conspire[d] with" CO Barnett to label him a snitch which caused him to be assaulted by his RHU cellmate; (6) he was transferred to JB block in retaliation for filing grievances; (7) in April 2010, Officers Moore, Sulloman and Counselor Park issued him false misconducts in retaliation for his filing of grievances; and (8) on August 28, 2008, Corrections Officer "K. Powell" confiscated Tabb's draft PCRA materials for a 120 days which resulted in his collateral appeal being denied as untimely filed. (Doc. 14, Am. Compl.).

IV. Discussion

A. Defendants' Motion for A More ...


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