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Fattah v. Sabol

United States District Court, Middle District of Pennsylvania

January 15, 2014

ABDEL FATTAH, Plaintiff
v.
MARY SABOL, et al., Defendants

Caputo Judge

REPORT AND RECOMMENDATION

THOMAS M. BLEWITT, United States Magistrate Judge

I. Background.

On August 3, 2010, Plaintiff Abdel Fattah, [1] an inmate at the State Correctional Institution at Rockview, Bellefonte, Pennsylvania, initially filed, pro se, [2] the instant civil rights action, in part under Bivens, [3] pursuant to 28 U.S.C. § 1331. Plaintiff‘s action was also filed under §1983 since he sought damages from state actors for alleged violations of his constitutional rights. See Parratt v. Taylor, 451 U.S. 527 (1981); Beattie v. Dept. of Corrections SCI-Mahanoy, 2009 WL 533051, *3 (M.D. Pa.). (Doc. 1). Plaintiff also filed a Motion for leave to proceed in forma pauperis. (Doc. 2).

Defendants named in Plaintiff’s original Complaint were: John Doe #1, Director, Dept. of Homeland Security (“DHS”); Kelly A. Mitra, Supervisory Detention Officer, U.S. Immigration and Customs Enforcement (“ICE”) at York County Prison; Cynthia L. Daub, Board Secretary at PA Board of Probation and Parole (“PA Board”); Jeffrey Beard, Secretary of the Pennsylvania Department of Corrections (“DOC”); John Doe #2, Owner of Columbia Care Center, Columbia, South Carolina (“CCC”); John Doe #3, Director of Columbia Care Center, Columbia, South Carolina; John Doe #4, Medical Director at Columbia Care Center, Columbia, South Carolina; and Mary Sabol, Warden, York County Prison (“YCP”). (Doc. 1).

On September 21, 2010, we screened Plaintiff‘s original Complaint as required under the PLRA and we issued an R&R. (Doc. 13). We recommended that all of Plaintiff‘s Eighth Amendment claims against Defendants John Doe Defendants # 2, owner of CCC, #3, Director of CCC, and #4, Medical Director at CCC be dismissed without prejudice to Plaintiff filing them in the United States District Court for the District of South Carolina. In the alternative, we recommended that all of Plaintiff’s claims against the stated three (3) CCC Defendants be transferred to the United States District Court for the District of South Carolina. We recommended that Plaintiff‘s claims challenging the duration of ICE’s detainment of him and the fact or length of his confinement in state prison be dismissed with prejudice since they must be brought in a § 2254 habeas petition and a §2254 habeas petition, respectively. We recommended that Defendant Beard and Defendant Daub be dismissed with prejudice since Plaintiff was only challenging the fact or length of his confinement in state prison, i.e. he alleged that Defendant Daub improperly rescinded his parole and that Daub along with Defendant Beard were keeping him in DOC custody without legal justification. Also, we recommended that insofar as Plaintiff alleged that Defendant John Doe #1 was illegally detaining him in ICE custody an extra six (6) months, this claim be dismissed with prejudice since Plaintiff must raise this claim in a §2254 habeas petition.

Further, we recommended that Plaintiff’s claim that defendant John Doe #1 DHS Director and Defendant Mitra tried to illegally deport him to Egypt based on his medical condition and that ICE was relying on “false information and travel documents” be dismissed with prejudice, since these claims must be raised in a § 2241 habeas petition. We also recommended that Defendant John Doe #1 DHS Director and Defendant Mitra be dismissed entirely from this action.

Additionally, we recommended that Plaintiff‘s Eighth Amendment denial of proper medical care claim, his Eighth Amendment condition of confinement claim, and his First Amendment denial of access to courts claim against Defendant Sabol be dismissed without prejudice to allow Plaintiff to file an Amended Complaint regarding his constitutional claims arising at York County Prison.

Finally, we recommended that Plaintiff‘s in forma pauperis Motion (Doc. 2) be granted.

On December 13, 2010, the District Court issued a memorandum and Order and adopted our R&R. (Doc. 17). See Fattah v. Doe, 2010 WL 5147449 (M.D. Pa.) (CV-10-1607). Since Plaintiff‘s Eighth Amendment denial of proper medical care claim, his Eighth Amendment condition of confinement claim, and his First Amendment denial of access to courts claim against Defendant Sabol were dismissed without prejudice, we calendared this case to allow Plaintiff to file an Amended Complaint as against only Defendant Sabol. We gave Plaintiff 30 days from the date of the District Court’s Order to file his Amended Complaint against Defendant Sabol and he failed to timely file his amended pleading or request more time within which to do so. Thus, we construed Plaintiff as wilfully abandoning his action.

Therefore, on January 18, 2011, we issued an R&R and recommended that this action be dismissed without prejudice on the basis of Plaintiff Fattah’s failure to comply with the Court’s December 13, 2010 Order. It was also recommended that Plaintiff’s case be dismissed without prejudice on the basis of his failure to prosecute his action by filing his Amended Complaint against Defendant Sabol. (Doc. 18). Plaintiff filed objections to our R&R.

On July 25, 2011, the Court issued an Order, found that Plaintiff‘s failure to timely file his Amended Complaint appeared not to be wilful, and rejected our Doc. 18 R&R. (Doc. 24). The Court afforded Plaintiff 30 days to his Amended Complaint and recommitted this case to the undersigned.

On August 24, 2011, Plaintiff filed, through counsel, his lengthy 34-page Amended Complaint. (Doc. 25). Plaintiff named the following twenty-one (21) Defendants: Mary Sabol, Warden of York County Prison (“YCP”); Jeffrey Beard, Secretary of the Pennsylvania Department of Corrections (“PA-DOC”); Thomas Decker, Field Office Director, Department of Homeland Security (“DHS”), Philadelphia Filed Office; Deputy Warden Buono, York County Prison; Joseph Sallemi, IHP Director, DHS at York County Prison detention facility; Kelly Mitra, Supervisory Detention and Deportation Officer for the DHS and U.S. Immigration and Customs Enforcement (“ICE”); Jennifer Miosi, employee of Prime Care Incorporated; Jesse Wildner, deportation officer, DHS, ICE; Brendan Quinlan, Deportation Officer, DHS, ICE; Mark Graham, Deportation Officer DHS, ICE; Matthew Klienman, Mental Health Coordinator for the Division of Immigration Health Services; Dennis Becotte, licensed psychologist; Jeff Rackovan, supervisory employee of the PA-DOC at SCI-Rockview; Nurse Somich; Dr. Symonds; Corrections Officer (“CO”) Granlund; CO Yeager; CO Sutton; Nurse Lamas; CO Evans; and CO March. (Doc. 25, pp. 3-7).

Plaintiff’s Amended Complaint alleged numerous violations of his constitutional rights and it asserted claims under the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12101, et seq. and the Rehabilitation Act, 29 U.S.C. §794, et seq. It is brought under §1331 and §1983 as well as under the ADA and Rehabilitation Act. This Court has jurisdiction over this action under §1331 and §1343.[4]

Again, we screened Plaintiff‘s Amended Complaint as we are obliged to do under the PLRA. See Sims v. Piazza, 2009 WL 3147800 (M.D. Pa.); O’Connell v. Sobina, 2008 WL 144199 (W.D. Pa.).[5]

On September 14, 2011, we issued a Report and Recommendation recommending that all of Plaintiff’s constitutional claims against Defendants DHS Deportation Officers Wildner, Quinlan and Graham be dismissed with prejudice since they are time barred. It was also recommended that all of Plaintiff‘s constitutional claims against Defendant Dr. Becotte and Defendants Sabol, Buono, Miosi, Decker, Mitra, Klienman and Sallemi which arose during his confinement at YCP from June 17, 2008 through July 25, 2008 be dismissed with prejudice as time barred. Further, we recommended that Defendant DOC Secretary Beard and Defendant Nurse Lamas be dismissed with prejudice. Additionally, it was recommended that Defendants Evans and March, as well as Defendants Yeager and Sutton, be dismissed with prejudice. It was recommended that Plaintiff‘s Rehabilitation Act claim and ADA claim (Seventh Cause of Action) be dismissed with prejudice as against all Defendants.

It was also recommended that Plaintiff’s Second, Fourth, Fifth, Sixth, Seventh and Eighth Causes of Action be dismissed with prejudice.

Finally, it was recommended that Plaintiff be permitted to proceed with his Eighth Amendment constitutional claims under §1983, i.e. denial of proper medical care claims and conditions of confinement claims (First and Third Causes of Action) only as against SCI-Rockview officials and staff, namely, Defendants Rackovan, Somich, Granlund and Dr. Symonds.

On March 23, 2012, the Court adopted our R&R in its entirety and granted Plaintiff twenty-one (21) days to amend the Amended Complaint. (Doc. 35). On May 17, 2012, we issued an R&R recommending Plaintiff’s case we dismissed with prejudice on the basis of Plaintiff’s failure to comply with the Court’s March 23, 2012 Order on the basis of his failure to prosecute the action. (Doc. 37). On May 21, 2012, Plaintiff filed a Notice of Appeal to the Third Circuit. (Doc. 38). On April 24, 2013, the Court adopted our R&R and dismissed the action pursuant to Federal Rule of Civil Procedure 41(b). (Doc. 51). On June 14, 2013, Plaintiff filed a Motion to Reinstate Action. (Doc. 57). On November 8, 2013, the Court granted Plaintiff’s Motion to Reinstate Action and Ordered Plaintiff to file an Amended Complaint consistent with the Court’s March 23, 2012 Memorandum and Order. (Doc. 58). On November 26, 2013, Plaintiff filed a second Amended Complaint. (Doc. 59).

II. PLRA.

As stated, Plaintiff has filed an application to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. (Doc. 2). The Prison Litigation Reform Act of 1995, [6] (the “PLRA”), obligates the Court to engage in a screening process when a prisoner wishes to proceed in forma pauperis pursuant to 28 U.S.C. § 1915.[7] Specifically, Section 1915(e)(2), which was created by § 805(a)(5) of the Act, provides:

(2) Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that (A) the allegation of poverty is untrue; or (B) the action or appeal (i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; ...

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