United States District Court, Western District of Pennsylvania
McVERRY DISTRICT JUDGE
MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
SUSAN PARADISE BAXTER UNITED STATES MAGISTRATE JUDGE
It is respectfully recommended that the motion to dismiss amended complaint filed on behalf of Defendants Wolf, Sobina, Adams, Wetzel, Smeal, Varner, and Rhodes [ECF No. 39] be granted. It is further recommended that, pursuant to the authority granted by the Prison Litigation Reform Act ("PLRA"), Plaintiffs claims against all remaining Defendants be dismissed for Plaintiffs failure to prosecute, and that this case be dismissed.
A. Relevant Procedural and Factual History
On July 27, 2012, Plaintiff Robert Hankins, an inmate formerly incarcerated at the State Correctional Institution at Albion, Pennsylvania ("SCI-Albion"), initiated this civil rights action by filing apro se complaint pursuant to 42 U.S.C. § 1983. Plaintiff subsequently filed an amended complaint on September 6, 2013, which is the operative pleading in this case [ECF No. 38]. Named as Defendants are: C/O Wolf, a corrections officer at SCI-Albion ("Wolf); White, captain of the security department at SCI-Albion ("White"); Raymond Sobina, former Superintendent at SCI-Albion ("Sobina"); MelindaL. Adams, Grievance Coordinator at SCI-Albion ("Adams"); John Wetzel, Secretary of the Pennsylvania Department of Corrections ("Wetzel"); Shirley Moore Smeal ("Smeal"); Dorina Varner, Chief Grievance Coordinator at SCI-Albion ("Varner"); Melissa Hilinski, acting mailroom supervisor at SCI-Albion ("Hilinski"); David A. Kuhn, Hearing Examiner at SCI-Albion ("Kuhn"); C. Meure, Lieutenant in the L-5 housing unit at SCI-Albion ("Meure"); Nancy Giroux, then Deputy Superintendent at SCI-Albion ("Giroux"); Lt. Johnson, L-5 corrections officer at SCI-Albion ("Johnson"); Rhodes, Sergeant of transporting prisoners at SCI-Albion ("Rhodes"); and several unnamed Defendants identified as John/Jane Doe (mailroom supervisor), John/Jane Doe(s) (mailroom staff), John Doe(s) (L-5 officials & staff), John Does (transport officers), and John Doe (Lt. at the facility where Plaintiff was hog-tied).
Plaintiff claims that Defendants have violated his rights under the first, eighth, and fourteenth amendments to the United States Constitution. In particular, Plaintiff alleges two incidents of excessive use of force. Plaintiff first claims that the first incident occurred on March 19, 2010, when Defendant Wolf allegedly closed Plaintiffs hands in the food aperture of his cell door, after which he issued Plaintiff a false misconduct "to cover his actions." (ECF No. 38, Amended Complaint, at Section rV.C and p. 6, ¶¶ 8-11). The second incident occurred on April 12, 2010, when Defendant Rhodes allegedly slammed Plaintiffs face down on the floor of a transportation bus, hog-tied him and left him on the floor, and then drove recklessly with deliberate indifference to Plaintiffs health and safety. (ECF No. 38, Amended Complaint, at pp. 8-10, ¶¶ 24-35). Plaintiff alleges further that Rhodes then issued him a false misconduct for spitting on the transport bus. (Id. at p. 11, ¶¶ 39-40).
In addition to the foregoing incidents, Plaintiff claims that Defendant Kuhn acted as hearing examiner with regard to the misconduct issued by Defendant Rhodes and violated Plaintiffs due process rights by denying him witnesses, even though he apparently dismissed the misconduct without prejudice. ( Id. at pp. 11-13, ¶¶ 41-45, 49-53). Plaintiff also claims that Defendants White, Adams, Sobina, Varner, Smeal, and Wetzel were aware of the alleged "custom and practice" of how complaints are handled in favor of staff, especially regarding assault claims, yet did nothing to correct the problem. ( Id. at pp. 5-6, 12-14, ¶¶ 2-7, 46-48, 56-59). Finally, Plaintiff complains that, between October 2007 and May 2012, the mailroom staff mishandled and tampered with his mail, and that Defendants Adams, Sobina, Hilinski, Meure, Giroux, White, Johnson, Wetzel, Smeal, and Varner were all made aware of the mail problems but did nothing to correct them. ( Id. at pp. 6-8, 10-11, 13-15, ¶¶ 12-23, 36-38, 56-66). As relief for his claims, Plaintiff seeks injunctive relief and monetary damages.
On September 18, 2013, Defendants Wolf, Sobina, Adams, Wetzel, Smeal, Varner, and Rhodes filed a motion to dismiss amended complaint [ECF No. 39], arguing that Plaintiffs excessive use of force claims against Defendants Wolf and Rhodes are barred by the applicable statute of limitations, and Plaintiff has failed to allege the personal involvement of Defendants Adams, Sobina, Varner, Smeal, and Wetzel. Plaintiff has since filed a brief in opposition to Defendants' motion. [ECF No. 58]. This matter is now ripe for consideration.
B. Standards of Review
I. Motion to Dismiss
A motion to dismiss filed pursuant to Federal Rule of Civil Procedure 12(b)(6) must be viewed in the light most favorable to the plaintiff and all the well-pleaded allegations of the complaint must be accepted as true. Erickson v. Pardus, 551 U.S. 89, 93-94 (2007). A complaint must be dismissed pursuant to Rule 12 (b)(6) if it does not allege "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)(rejecting the traditional 12 (b)(6) standard set forth in Conley v. Gibson, 355 U.S. 41 (1957)). See also Ashcroft v. Iqbal, 556 U.S. 662 (2009) (specifically applying Twombly analysis beyond the context of the Sherman Act).
The Court need not accept inferences drawn by plaintiff if they are unsupported by the facts as set forth in the complaint. See California Pub. Employee Ret. Sys. v. The Chubb Corp., 394 F.3d 126, 143 (3d Cir. 2004) citing Morse v. Lower Merion School Dist, 132 F.3d 902, 906 (3d Cir. 1997). Nor must the court accept legal conclusions set forth as factual allegations. Twombly, 550 U.S. at 555, citing Papasan v. Allain, 478 U.S. 265, 286 (1986). "Factual allegations must be enough to raise a right to relief above the speculative level." Twombly, 550 U.S. at 555. Although the United States Supreme Court does "not require ...