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Cash v. Wetzel

United States District Court, E.D. Pennsylvania

March 26, 2014

OMAR SHERIEFF CASH, Plaintiff
v.
JOHN WETZEL, Secretary of Corrections; JEFFREY WITHERITE, Staff Assistant-Western Region; DORINA YARNER, Chief Grievance Officer; MIKE WENEROWICZ, Facility Manager SCI Graterford; WENDY SHAYLOR, Grievance Coordinator; E. VEROSKY, Lieutenant; LEWIS, Sargent; KRYESKI, Correctional Officer; AGUIAR, Correctional Officer, THOMAS DOHMAN; JOHN SPAGNOLETTI; JOSEPH TERRA; JEFFREY BENDER; MARK COX; JOHN EVERDING; BRIAN MOYER; PARTICK FINA; PARTICK CURRAN; EPHRAIN RIVERA; and ISAIAH HALL, Defendants [1]

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OMAR SHERIEFF CASH, Pro se.

ANTHONY P. VENDITTI, ESQUIRE, On behalf of Defendants.

OPINION

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JAMES KNOLL GARDNER, United States District Judge.

This matter is before the court on plaintiff's Supplemental Complaint Notice, filed August 12, 2013 [2]; Commonwealth Defendants' Motion to Dismiss the Second Amended Complaint [3] filed August 23, 2013; and plaintiff's Request for Entry of Default, filed August 26, 2013 [4].

Commonwealth Defendants' Response in Opposition to Plaintiff's Motion for Leave to Amend the Second Amended Complaint was filed August 23, 2013 [5]. A Motion in Opposition to Defendants' Motion to Dismiss was filed by plaintiff on October 7, 2013 [6]. Defendants' Memorandum of Law in Opposition to Plaintiff's Motion for Default Judgment was filed August 28, 2013 [7].

SUMMARY OF DECISION

For the reasons expressed below, I grant plaintiff's motion for leave to file a supplemental complaint because his Supplemental Complaint properly supplements his [Second] Amended Complaint as allowed by Federal Rule of Civil Procedure 15(d).

Additionally, I grant in part and deny in part Commonwealth Defendants' Motion to Dismiss the Second Amended Complaint. Defendants' motion to dismiss is granted with respect to Counts 7, 9, 14, 15, and 18. Defendants' motion to dismiss is denied with respect to Counts 1-6, 10-13, and 16.

Defendants' motion to dismiss is granted with respect to Count 17 to the extent it seeks to dismiss claims against defendants Bender, Everding, Terra, Spagnoletti, and Wenerowicz. It is denied to the extent it seeks to dismiss claims against defendants Kryeski and Curran.

Finally, I deny plaintiff's Request for Entry of Default because all defendants have responded to plaintiff's Second Amended Complaint.

JURISDICTION

This court has original jurisdiction over the subject matter of this action brought

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pursuant to 42 U.S.C. § 1983 based upon federal question jurisdiction pursuant to 28 U.S.C. § 1331.

VENUE

Venue is proper pursuant to 28 U.S.C. § 1391(b) because the events giving rise to these claims occurred in Montgomery County, Pennsylvania, which is located in this judicial district. See 28 U.S.C. § § 118, 1391(b).

PROCEDURAL HISTORY

On October 17, 2012 plaintiff pro se filed a Motion for Leave to Proceed In Forma Pauperis [8]. By Order dated and filed October 22, 2012 I granted plaintiff's motion and directed the Clerk of Court to file plaintiff's initial Complaint [9]. The Complaint was filed on October 22, 2012 [10].

On November 9, 2012 plaintiff filed a Motion for Leave to File an Amended Complaint [11]. By Order dated December 20, 2012 and filed December 21, 2012 I granted plaintiff's motion as unopposed and ordered the Clerk of Court to file plaintiff's Amended Complaint [12]. The Amended Complaint was filed on December 21, 2013 [13]. On January 4, 2013 the Commonwealth defendants filed a motion to dismiss plaintiff's Amended Complaint [14].

On January 14, 2013 plaintiff filed Plaintiff's Opposition to Commonwealth Defendants' Motion to Dismiss Amended Complaint [15] and filed a Motion for Leave to File [a Second] Amended Complaint [16]. On January 29, 2013 defendants filed the Commonwealth Defendants' Response in Opposition to Plaintiff's Motion for Leave to Amend the Amended Complaint [17].

By Order dated and filed July 22, 2013, I granted plaintiff's motion for leave to file a second amended complaint and ordered the Clerk of Court to file plaintiff's [Second] Amended Complaint, which was filed that day [18]. Additionally I gave defendants a deadline of August 12, 2013 to respond to plaintiff's [Second] Amended Complaint.

Plaintiff's [Second] Amended Complaint asserts fifteen separate causes of action which he identifies as Denial of Access to Courts (Count 1); Supervisory Liability (Counts 2, 7, and 14); Conspiracy (Counts 3, 4, 8, 11 and 13); Failure to Intervene (Counts 5, 6, 9, 10, and 12); and Violation of Equal Protection (Count 15) against defendants Wetzel, Witherite, Varner, Wenerowicz, Shaylor, Verosky, Lewis, Aguiar and Kryeski.

On August 9, 2013 defendants filed a Motion for Extension of Time in Which to Respond to Plaintiff's Second Amended Complaint [19]. By Order dated and filed August 21, 2013 I granted defendants' motion

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and gave defendants until August 26, 2013 to respond to plaintiff's Second Amended Complaint [20].

On August 12, 2013 plaintiff filed the within Supplemental Complaint Notice, which sought leave to file a supplemental complaint pursuant Federal Rule of Civil Procedure 15(d)[21].

Attached to plaintiff's motion for leave to file a supplemental complaint is plaintiff's Supplemental Complaint which asserts additional causes of action for Retaliation (Count 16); Failure to Intervene (Count 17); and Due Process Violation (Count 18) against defendants Varner, Wenerowicz, Shaylor, Dohman, Spagnoletti, Terra, Bender, Cox, Everding, Moyer, Fina, Curran, Kryeski, Rivera, and Hall.

On August 23, 2013 defendants filed the Commonwealth Defendants' Response in Opposition to Plaintiff's Motion for Leave to Amend the Second Amended Complaint, which opposes defendant's motion for leave to file a supplemental complaint.

On August 23, 2013 defendants Varner, Wenerowicz, Shaylor, Dohman, Spagnoletti, Terra, Bender, Cox, Everding, Moyer, Fina, Curran, Kryeski, Rivera, and Hall filed the within Commonwealth Defendants' Motion to Dismiss the Second Amended Complaint.[22] On October 7, 2013 plaintiff filed a Motion in Opposition to Defendants' Motion to Dismiss.

On August 26, 2013 plaintiff filed the within Request for Entry of Default, requesting the court to enter default against the defendants for failure to plead or otherwise respond to the [Second] Amended Complaint. On August 28, 2013 defendants filed a Memorandum of Law in Opposition to Plaintiff's Motion for Default Judgment.

STANDARD OF REVIEW

Motion to Supplement Complaint

The District Court may permit a party to file a supplemental pleading " setting out any transaction, occurrence, or event that happened after the date of the

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pleading to be supplemented." Fed.R.Civ.P. 15(d); see also Crosby v. Piazza, 465 F.Appx. 168, 174 (3d Cir. 2012). A supplemental complaint " refers to events that occurred after the original pleading was filed." Owens-Illinois, Inc. v. Lake Shore Land Co., 610 F.2d 1185, 1188-1189 (3d Cir. 1979).

An application for leave to file a supplemental pleading " is addressed to the sound discretion of the trial court and should be freely granted when doing so will promote the justiciable disposition of the case, will not cause undue prejudice or delay or trial inconvenience and will not prejudice the rights of any parties to the action." Bates v. Western Electric, 420 F.Supp. 521, 525 (E.D.Pa. 1976)(Broderick, J.).

Motion to Dismiss

A claim may be dismissed under Federal Rule of Civil Procedure 12(b)(6) for " failure to state a claim upon which relief can be granted." A Rule 12(b)(6) motion requires the court to examine the sufficiency of the complaint. Conley v. Gibson, 355 U.S. 41, 45, 78 S.Ct. 99, 102, 2 L.Ed.2d 80, 84 (1957) (abrogated in other respects by Bell Atlantic Corporation v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). Generally, in ruling on a motion to dismiss, the court relies on the complaint, exhibits attached to the complaint, and matters of public record, including other judicial proceedings. Sands v. McCormick, 502 F.3d 263, 268 (3d Cir. 2008).

Except as provided in Federal Rule of Civil Procedure 9, a complaint is sufficient if it complies with Rule 8(a)(2), which requires " a short and plain statement of the claim showing that the pleader is entitled to relief" . Rule 8(a)(2) does not require heightened fact pleading of specifics, but only enough facts to state a claim to relief that is plausible on its face. Twombly, 550 U.S. at 570, 127 S.Ct. at 1974, 167 L.Ed.2d at 949.[23]

In determining whether a complaint is sufficient, the 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, the plaintiff may be entitled to relief. Fowler, 578 F.3d at 210 (citing Phillips v. County of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008)).

Although " conclusory" or " bare-bones allegations" will not survive a motion to dismiss, Fowler, 578 F.3d at 210, a complaint may not be dismissed merely because it appears unlikely that the plaintiff can prove those facts or will ultimately prevail on the merits. Phillips, 515 F.3d at 231. Nonetheless, to survive a Rule 12(b)(6) motion, the complaint must provide " enough facts to raise a reasonable expectation that discovery will reveal evidence of the necessary element." Id. at 234 (quoting Twombly, 550 U.S. at 556, 127 S.Ct. at 1965, 167 L.Ed.2d at 940) (internal quotations omitted).

The court is required to conduct a two-part analysis when considering a Rule 12(b)(6) motion. First, the factual matters averred in the complaint, and any attached exhibits, should be separated from legal

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conclusions asserted. Fowler, 578 F.3d at 210. Any facts pled must be taken as true, and any legal conclusions asserted may be disregarded. Id. at 210-211.

Second, the court must determine whether those factual matters averred are sufficient to show that the plaintiff has a " plausible claim for relief." Id. at 211 (quoting Iqbal, 556 U.S. at 679, 129 S.Ct. at 1950, 178 L.Ed.2d at 884).

Ultimately, this two-part analysis is " context-specific" and requires the court to draw on " its judicial experience and common sense" to determine if the facts pled in the complaint have " nudged [plaintiff's] claims" over the line from " [merely] conceivable [or possible] to plausible." Iqbal, 556 U.S. at 679-680, 129 S.Ct. at 1949-1951, 178 L.Ed.2d at 884-885.

A well-pled complaint may not be dismissed simply because " it strikes a savvy judge that actual proof of those facts is improbable, and that a recovery is very remote and unlikely." Twombly, 550 U.S. at 556, 127 S.Ct. at 1965, 167 L.Ed.2d at 940-941 (internal quotations omitted).

Motion for Default

" When a party against whom a judgment or affirmative relief is sought has failed to plead or otherwise defend, and that failure is shown by affidavit or otherwise, the clerk must enter the party's default." Fed.R.Civ.P. 55(a).

FACTS

Based upon the averments in plaintiff's Second Amended Complaint and Supplemental Complaint, which I must accept as true under the applicable standard of review discussed above, the pertinent facts are as follows.

Second Amended Complaint

On May 26, 2011 plaintiff was transported from State Correctional Institution-(" SCI" ) Albion to SCI-Graterford to appear at a pre-trial hearing for a capital offense case in Philadelphia County [24]. While at SCI-Graterford plaintiff was in administrative segregation and was housed on the death row unit, J-Unit [25].

On June 24, 2011, Correctional Officer Aguiar and Sargent Lewis instructed plaintiff to be handcuffed and escorted plaintiff to I-Unit without notifying plaintiff that his bed assignment was being changed [26]. Upon arriving at I-Unit, plaintiff was strip searched and placed in a cell [27].

Plaintiff was notified by an inmate housed on J-Unit that Officer Aguiar ate plaintiff's commissary items and Sargent Lewis threw plaintiff's documents into a trash can while stating " murderers and rapists need to stay in jail, so he won't be needing this sh*t" [28]. While this was occurring, Lieutenant Verosky approached and asked Officer Aguiar and Sargent Lewis what they were doing to which Officers Aguiar and Lewis responded, " taking out the trash" [29].

After such transfers plaintiff did not receive his personal property which consisted of: transcripts from a previous 30-day trial; discovery in his pending capital case; $52.00 worth of commissary items; and signed notarized affidavits provided by witnesses in his pending capital case [30].

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Plaintiff's direct appeal in the pending capital case was denied on December 14, 2011 [31]. On August 14, 2012 plaintiff filed a Petition for Post Conviction Collateral Relief in an attempt to notify the court of his inability to actively participate in his appellate process because of the destruction of his trial transcripts [32].

Plaintiff filed an initial grievance concerning his missing property on June 25, 2011 [33]. On July 15, 2011 Plaintiff received a response from Lieutenant Verosky denying his initial grievance [34].

Plaintiff appealed the denial of the grievance to Superintendent Mike Wenerowicz on July 15, 2011 [35]. On September 12, 2011 plaintiff received a response to the grievance appeal denying the grievance at the appellate level, which response was signed by Superintendent Wenerowicz [36].

On September 18, 2011, plaintiff appealed the denial of his grievance appeal to the Pennsylvania Department of Corrections Chief Grievance Officer, Dorinda Varner, which appeal was dismissed because it was untimely [37].

Plaintiff was transferred from SCI-Graterford to SCI-Albion on June 30, 2011 without his missing property. On July 7, 2011 plaintiff notified the Program Review Committee at SCI-Albion that none of his property or legal work had arrived from SCI-Graterford. On July 13, 2011 plaintiff received a legal box which contained ...


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