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Cohen v. Wagner

United States District Court, E.D. Pennsylvania

January 16, 2014

PAUL A. COHEN
v.
GEORGE WAGNER, et al.

MEMORANDUM

THOMAS N. O'NEILL, Jr., District Judge.

Plaintiff Paul A. Cohen, proceeding pro se, is a prisoner who was, until recently, housed in the Berks County Jail System. On February 4, 2013, he filed a complaint against defendants Warden George Wagner, Chaplain Mast, Officer Matta (Kitchen), Sergeant Swenson (Kitchen), Officer Dew, Officer Gerry, Lieutenant Castro and Supervisors John and Jane Doe. (Dkt. No. 1). He filed an amended complaint on March 12, 2013. (Dkt. No. 9). Cohen claims, inter alia, that he was not provided with Kosher meals, that his religious text was destroyed, that his legal mail was returned for insufficient postage and that he was retaliated against, all in violation of his rights under the First, Eighth and Fourteenth Amendments of the United States Constitution and the Religious Land Use and Institutionalized Persons Act (RLUIPA). 42 U.S.C. §§ 2000cc, et seq. Cohen's amended complaint also endeavors to assert a claim for fraudulent misrepresentation, presumably under Pennsylvania state law. Since filing his amended complaint, Cohen has filed a number of motions with the Court seeking, inter alia, appointment of counsel, amendment of his complaint, injunctive relief and to compel discovery. Also pending before me are motions to dismiss Cohen's amended complaint by Warden George Wagner, Officer Matta, Sergeant Svenson, Officer Dew, Officer Gerry and Lt. Castro (collectively the Berks defendants) (Dkt. No. 46) and by Chaplain Larry Mast (Dkt. No. 47). The Court considers the pending motions as follows.

I. Motion for Appointment of Counsel

Among the motions filed by Cohen is a motion for appointment of counsel. Dkt. No. 15. 28 U.S.C. section 1915(e)(1) "gives district courts broad discretion to request an attorney to represent an indigent civil litigant. Such litigants have no statutory right to appointed counsel." Tabron v. Grace , 6 F.3d 147, 153 (3d Cir. 1993); see also 28 U.S.C. § 1915(e)(1) ("The court may request an attorney to represent any person unable to afford counsel."). As the Court of Appeals explained in Tabron,

we must take note of the significant practical restraints on the district courts' ability to appoint counsel: the ever-growing number of prisoner civil rights actions filed each year in the federal courts; the lack of funding to pay appointed counsel; and the limited supply of competent lawyers who are willing to undertake such representation without compensation.... We also emphasize that volunteer lawyer time is extremely valuable. Hence district courts should not request counsel under § 1915[(e)] indiscriminately."

Id. at 157.[1]

In deciding whether to appoint counsel, "the district court must consider as a threshold matter the merits of the plaintiff's claim." Id. at 155. If Cohen's claim has "arguable merit in fact and law, " the Court should consider whether he is capable of presenting his case, taking into consideration the restraints placed upon him by his confinement, his prior litigation experience, his literacy and ability to understand English, and his prior education and work experience. Id. at 156. The Court should also consider the degree of difficulty or complexity of the legal issues raised by his claims, the degree to which factual investigation will be required and Cohen's ability to pursue the investigation, including the extent to which his claims are likely to require extensive discovery or compliance with complex discovery rules. Id . Finally, "appointment of counsel may be justified when a case is likely to turn on credibility determinations, or when a case will require testimony from expert witnesses." McNeil-El v. Diguglielmo, No. 06-577, 2007 WL 1575006, at *2 (E.D. Pa. May 31, 2007), aff'd, 271 F.Appx. 283, 286 (3d Cir. 2008), citing Tabron, 6 F.3d at 15-556.

Even assuming that Cohen's complaint and amended complaint could withstand the pending motions to dismiss, the Court finds that appointment of counsel is not warranted. Cohen's complaint, amended complaint and his other numerous filings in this action demonstrate his ability to articulate the events giving rise to his lawsuit, the constitutional rights which he believes were violated and his other claims for relief. Further, the legal issues alleged in Cohen's complaint and amended complaint are not so complex that he cannot proceed without the assistance of counsel - other prisoners have brought similar claims without the assistance of counsel.[2] Nor is the factual investigation required for his claims such that he will be unable to pursue his claims without the assistance of counsel. The Court will deny Cohen's motion for appointment of counsel without prejudice. In the event that issues arise in the future that raise a question as to Plaintiff's need for appointed counsel, the Court will consider a renewed motion for appointment of counsel.

II. Requests for Temporary Restraining Orders and Injunctions

Cohen has also filed a number of requests for temporary restraining orders and injunctions. See, e.g., Dkt. Nos. 12, 13, 40, 41, 44, 53, 56. He seeks injunctive relief requiring, inter alia: (1) that defendants be enjoined from coming within 100 feet of him, Dkt. No. 12 at ECF p. 1-2; (2) his transfer to Cumberland County Prison or vacation of his sentences, id. at ECF p. 2; (3) provision of "a Kosher breakfast with fresh fruit and fresh vegetables included, " id. at ECF p. 4; (4) a medical examination by an "unbiased surgeon regarding the hiatal hernia and the umbilical hernia, " id.; and (5) that the "Berks C[ounty] Jail Sys[tem] not hinder or intercept mail clearly marked legal mail...." Id . Cohen also asks for an injunction requiring the defendant Warden George Wagner "to hire a full time Rabbi." Dkt. No. 40 at ECF p. 2. In a subsequent motion he seeks to enjoin defendants from "refusing to mail any and all legitimate, marked legal mail up to 10 per month, " "refusing to treat with the necessary antibiotics, MRSA, " "refusing to see plaintiff for sick calls, " and "refusing to treat emotional problems for no longer than 30 days." Dkt. No. 44 at ECF p. 2. Cohen also asks for an injunction preventing defendants "from allowing any inmate to prepare plaintiff's food, due to the inmates tampering with Kosher food items, " and seeks a court order that "all foods [ ] be prepackaged, and heated and served in its original wrapper, whole fruits and vegetables are to be served in place of easily tampered with canned fruits and vegetables...." Dkt. No. 53 at ECF p. 3-4.

On January 2, 2013, the Court received notice from Cohen that he has changed addresses and that he is "now at Wernersville CCC #18." Dkt. No. 59. Cohen's transfer from the Berks County Jail System in Leesberg, Pennsylvania to Wernersville CCC #18, in Wernersville, Pennsylvania renders moot his various requests for injunctive relief against Chaplain Mast and the defendant corrections officials who formerly oversaw the conditions of Cohen's confinement at the Berks County Jail System. "If developments occur during the course of adjudication that eliminate a plaintiff's personal stake in the outcome of a suit or prevent a court from being able to grant the requested relief, the case must be dismissed as moot." Blanciak v. Allegheny Ludlum Corp. , 77 F.3d 690, 698-99 (3d Cir. 1996); see, e.g., Abdul-Akbar v. Watson , 4 F.3d 195, 197 (3d Cir. 1993) (holding that a former inmate's claim that a prison library's legal resources were constitutionally inadequate was moot because the plaintiff was released five months before trial). Because Cohen no longer receives food, medical care, mail services or religious services from the Berks County Jail System, his "requests to enjoin the defendants... [are] academic.... In other words, [Cohen's] transfer to another institution moots any claims for injunctive or declaratory relief." Fortes v. Harding , 19 F.Supp.2d 323, 326 (M.D. Pa. 1998) (citations omitted). Accordingly, the Court will deny Cohen's requests for injunctive relief.

III. Motions to Dismiss and for Leave to Amend

A. Standard of Review

A defendant may challenge a complaint by a motion under Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6). In deciding a motion to dismiss under Rule 12(b)(6), the Court is required to accept as true all of the factual allegations in the complaint, and all reasonable inferences permitted by the factual allegations, viewing them in the light most favorable to the plaintiff. Evancho v. Fisher , 423 F.3d 347, 350-51 (3d Cir. 2005); see also Ashcroft v. Iqbal , 556 U.S. 662, 663 (2009); Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 555-56 (2007). "[C]onclusory or bare-bones' allegations will no longer survive a motion to dismiss: threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.' To prevent dismissal, all civil complaints must now set out sufficient factual matter' to show that the claim is facially plausible." Fowler v. UPMC Shadyside , 578 F.3d 203, 210 (3d Cir. 2009), quoting Iqbal , 556 U.S. at 678.

The Court also has the power to dismiss a complaint that fails to comply with Rule 8 of the Federal Rules of Civil Procedure. See Ala' Ad-Din Bey v. U.S. Dept. of Justice, 457 F.Appx. 90, 91 (3d Cir. 2012) (affirming district court's dismissal); Vurimindi v. HSFLB Condo. Owners Ass'n, No. 13-39, 2013 WL 3153756, at *3 (E.D. Pa. June 21, 2013). Rule 8(a)(2) of the Federal Rules of Civil Procedure requires "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). Each averment must be "simple, concise, and direct." Fed.R.Civ.P. 8(d)(1). "Taken together, " Rules 8(a) and 8(d)(1) "underscore the emphasis placed on clarity and brevity by the federal pleading rules." In re: Westinghouse Sec. Litig., 90 F.3d 696, 702 (3d Cir. 1996) (citation omitted). Dismissal pursuant to Rule 8 has been found warranted where a complaint is rambling, unclear and/or unwieldy. See, e.g., Tillio v. Kent, 477 F.Appx. 881, 882 (3d Cir. 2012); Simpson v. City of Coatesville, No. 10-0100 , 2010 WL 149895, at *1 (E.D. Pa. Jan. 13, 2010). Dismissal under Rule 8 has also been held proper when a complaint "left the defendants having to guess what of the many things discussed constituted [a cause of action]." Binsack v. Lackawanna Cnty. Prison , 438 F.Appx. 158 (3d Cir. 2011),

Because Cohen is proceeding pro se, the Court "must liberally construe his pleadings, and... apply the applicable law, irrespective of whether the pro se litigant has mentioned it by name." Dluhos v. Strasberg , 321 F.3d 365, 369 (3d Cir. 2003). "[H]owever inartfully pleaded, " pro se pleadings must be held to "less stringent standards than formal pleadings drafted by lawyers." Haines v. Kerner , 404 U.S. 519, 520-21 (1972); see also United States ex rel. Montgomery v. Bierley , 141 F.2d 552, 555 (3d Cir. 1969) (noting that a petition prepared by a prisoner may be inartfully drawn and should be read "with a measure of tolerance"). Prisoners in particular are often at an informational disadvantage that may prevent them from pleading the full factual predicate for their claims. Alston v. Parker , 363 F.3d 229, 233 n.6 (3d Cir. 2004). Unless amendment would be inequitable or futile the Court should not dismiss Cohen's amended complaint without allowing him leave to amend. Id. at 235 (3d Cir. 2004), citing Grayson v. Mayview State Hosp. , 293 F.3d 103, 108 (3d Cir. 2002); see also Ala' Ad-Din Bey, 457 F.Appx. at 91 (dismissal pursuant to Rule 8 should not be imposed without granting leave to amend the defective pleading).

B. Berks Defendants' Motion to Dismiss

The Berks defendants move to dismiss Cohen's complaint and amended complaint[3] for failure to state a claim upon which relief can be granted. Dkt. No. 46. They contend that Cohen's claims must "fail as he was promptly provided with Kosher meals after he informed Defendant Chaplain Mast of his request, the Tanakh was not destroyed but had a false cover removed, Plaintiff was not denied access to the courts, and there are no facts supporting a retaliation claim." Id. at ECF p. 3-4. Further, they contend that Cohen's "state claim for fraudulent misrepresentation also ...


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