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Glenn Bedford Ross v. Pennsylvania Board of Probation and Parole

August 16, 2012

GLENN BEDFORD ROSS,
PLAINTIFF,
v.
PENNSYLVANIA BOARD OF PROBATION AND PAROLE, ET AL., DEFENDANTS



The opinion of the court was delivered by: (Chief Judge Kane)

MEMORANDUM

Glenn Bedford Ross commenced this civil rights action pursuant to 42 U.S.C. § 1983. Named as Defendants in the original complaint were the Pennsylvania Board of Probation and Parole, Parole Board Chairwoman Catherine McVey, Parole Agent Chad Ishler and Cynthia L. Daub, Deputy Executive Director for the Parole Board. Also named were the following employees of SCI-Rockview, Plaintiff's place of incarceration: David Durst and Bethanne Burkholder, psychological services associates; Billie Jo Rupert, Unit Manager; and Samuel L. Condo, a corrections counselor. On September 7, 2011, this Court granted Defendants' motion to dismiss the complaint and directed Plaintiff to file an amended complaint in this action. (Doc. No. 32.) An amended complaint was thereafter submitted and names three (3) of the original Defendants (Durst, Rupert and Ishler). Also named as a Defendant is Prison Health Services ("PHS"), a contract health services company. Presently pending is a motion to dismiss the amended complaint filed by Defendants Durst, Rupert and Ishler. (Doc. No. 34.) Also pending is Plaintiff's motion for restraining order (Doc. 42.) For the reasons that follow, the motion to dismiss will be granted, and the motion for restraining order will be denied as moot.

I. Allegations in the Amended Complaint

In the amended complaint Plaintiff names as Defendants David Durst, a prison psychologist, Billie Jo Rupert, a unit manager, Chad Ishler, a parole agent for the Pennsylvania Board of Probation and Parole, and Prison Health Services, a private company contracted by the Pennsylvania Department of Corrections to provide healthcare to state inmates.*fn1 Durst, Rupert and Ishler have filed a motion to dismiss the amended complaint. In the amended complaint Plaintiff alleges that Durst conspired to injure him by not reporting events "set forth to Authority" and that Durst "agreed to function and support a system of unlawful deception ... by convincing [Plaintiff] to participate in a scheme of common scheme and design . . . ." (Doc. No. 33 at 3.) He further contends that this conduct deprived him of his First and Fourteenth Amendment rights.

Plaintiff alleges that Rupert "conspired with Parole Office to ... force [him] to take part in a mission...by treat (sic) into a program not required by directive set forth by the Court ...." (Id. at 9.) He also claims that Rupert committed criminal conspiracy in violation of criminal statute 18 Pa. C.S.A. § 903 and made threats in violation of 18 Pa. C.S.A. § 4702.

Plaintiff does not make any specific allegations with respect to Defendant Ishler. Rather, Plaintiff refers generally to a "Civil Officer" who verbally assaulted him when he refused to attend a program. He further maintains that the Civil Officer told him if he did not attend the class that he would be denied parole. Plaintiff also alleges criminal violations including terroristic threats under 18 Pa. C.S.A. § 2706 and fraud under 18 Pa. C.S.A. §§ 4103 and 4104. Plaintiff does not request any specific form of relief. (Id. at 12-13.)

II. Motion to Dismiss Standard

On a motion to dismiss, this Court must "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." Kerchner v. Obama, 612 F.3d 204, 207 (3d Cir. 2010)(quoted case omitted). A complaint must contain a "short and plain statement of the claim showing that the pleader is entitled to relief," Fed. .R. Civ. P. 8(a)(2), giving the defendant "fair notice of what the ... claim is and the grounds upon which it rests." Erickson v. Pardus, 551 U.S. 89, 93 (2007) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). Although detailed factual allegations are not required, Twombly, 550 U.S. at 93, the complaint has to plead "enough facts to state a claim to relief that is plausible on its face." Id. at 570; see also Santiago v. Warminster Tp., 629 F.3d 121, 128 (3d Cir. 2010). "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." Ashcroft v. Iqbal, ___ U.S. ___, ___, 129 S. Ct. 1937, 1949, 173 L. Ed. 2d 868 (2009)(quoting Twombly, 550 U.S. at 556). "[L]abels and conclusions" are not enough, Twombly, 550 U.S. at 555, 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).

However, courts are cautioned that because of this liberal pleading standard, a plaintiff should generally be granted leave to amend before dismissing a claim that is merely deficient. See Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002); Shane v. Fauver, 213 F.3d 113, 116-17 (3d Cir. 2000). The federal rules allow for liberal amendments in light of the "principle that the purpose of pleading is to facilitate a proper decision on the merits." Foman v. Davis, 371 U.S. 178, 182 (1962)(citations and internal quotations omitted). However, leave to amend under Rule 15 may be denied in cases of (1) undue delay; (2) bad faith or dilatory motive; (3) undue prejudice; or (4) futility of amendment. See Foman, 371 U.S. at 182; see also Arthur v. Maersk, Inc., 434 F.3d 196, 204-05 (3d Cir. 2006)(stating that "leave to amend must generally be granted unless equitable considerations render it otherwise unjust"); see also Long v. Wilson, 393 F.3d 390, 400 (3d Cir. 2004)(stating "absent undue or substantial prejudice, an amendment should be allowed under Rule 15(a) unless denial can be grounded in bad faith or dilatory motive, truly undue or unexplained delay, repeated failure to cure deficiency by amendments previously allowed or futility of amendment")(citations and internal quotation marks omitted); Alvin v. Suzuki, 227 F.3d 107, 121 (3d Cir. 2000)(summarizing factors to consider under Rule 15).

III. Discussion

A. Motion to Dismiss by Defendants Durst, Rupert and Ishler

Defendants Durst, Rupert and Ishler have filed the instant motion to dismiss the amended complaint in large part on the same basis as their earlier motion to dismiss the original complaint. They maintain that Plaintiff again fails to set forth actual facts showing that he is entitled to relief, and that his allegations are mostly unintelligible, conclusory and fail to set forth any viable claim of unconstitutional conduct. After carefully reviewing the amended complaint, the Court must agree.

In order to set forth a cognizable claim of conspiracy, a plaintiff cannot rely on broad or conclusory allegations. D.R. by L.R. v. Middle Bucks Area Vocational Technical Sch., 972 F.2d 1364, 1377 (3d Cir. 1992); Rose v. Bartle, 871 F.2d 331, 366 (3d Cir. 1989); Durre v. Dempsey, 869 F.2d 543, 545 (10th Cir. 1989). The Third Circuit has noted that a civil rights conspiracy claim is sufficiently alleged if the complaint details the following: (1) the conduct that violated the plaintiff's rights, (2) the time and the place of the conduct, and (3) the identity of the officials responsible for the conduct. Oatess v. Sobolevitch, 914 F.2d 428, 432 n. 8 (3d Cir. 1990); see also, Colburn v. Upper Darby Twp., 838 F.2d 663 (3d Cir. 1988). The essence of conspiracy is an agreement or concerted action between individuals. See D.R. by L.R., 972 F.2d at 1377; Durre, 869 F.2d at 545. A plaintiff must therefore allege with particularity and present facts which show that the purported conspirators reached some understanding or agreement or plotted, planned and conspired together to deprive plaintiff of a protected federal right. See id.; Rose, 871 F.2d at 366. Where a civil rights conspiracy is alleged, there ...


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