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Smith v. Wetzel

United States District Court, W.D. Pennsylvania

January 5, 2015

JAMAL SMITH, Plaintiff,
JOHN E. WETZEL, Secretary of Corrections; BRIAN V. COLEMAN, Superintendent State Correctional Institution; R. MACKEY, Hearing Examiner; SUE BERRIE, Hospital Administrator; C.O. RICE, Correctional Officer in the S.N.U.; SHELLY MANKEY, Unit Manager over E-A EB Block; C.O. CUMMINGS; C.O. WILLIAM; C.O. SHAULIS, the Madman Misconduct Writer on Inmates, who do not stand for Count; MR. THOMAS, Correctional Officer also known as CLARK GABLE; C.O. MORAN; C.O. PATTERSON; C.O. HARVEY; KATHY McMILLAN, Infirmry Nurse; C.O. SGT. PHILIP SHIPLEY, over The SNU Unit, and EB Block, Defendants.


MAUREEN P. KELLY, Chief Magistrate Judge.

Pending before the Court is Defendants' Motion to Dismiss [ECF No. 38], seeking dismissal of this action pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. After review of the Motion, the brief filed in support thereof, and the extensive procedural history of this matter, and for the reasons that follow, the Motion to Dismiss is GRANTED, with prejudice, as to all Defendants and Rhonda House. In addition, to the extent Plaintiff moves this Court for the third time for the appointment of counsel, and for the reasons that follow, Plaintiff's Motion to Appoint Counsel is DENIED.

I. Facts and Relevant Procedural History

Plaintiff Jamal Smith is an inmate currently incarcerated at the State Correctional Institution at Fayette ("SCI - Fayette") and has been granted leave to prosecute this pro se civil rights action without prepayment of costs. In his Complaint [ECF No. 3], Plaintiff alleges the violation of his constitutional rights arising out of Defendants' failure to provide prompt medical treatment and pain medication for a broken finger. Plaintiff alleges that on October 18, 2013, he broke his finger in a fall from his assigned top bunk bed, which does not have a safety rail. He further alleges that Defendants left him to suffer in pain until November 4, 2013, when he was taken to the hospital for surgery. Plaintiff alleges additional claims against Defendant Coleman and Rhonda House[1] for denying his grievances related to the fall.

On May 21, 2014, Plaintiff filed a Motion to Supplement Complaint, seeking to add a second Eighth Amendment claim against all Defendants for deliberate indifference in assigning him to a top bunk without a safety rail. [ECF No. 33]. Plaintiff alleged that because he is hard of hearing and wears a hearing aid, the Defendants violated his constitutional rights by assigning him to a top bunk. Because the law is firmly settled that such allegations fail to state a claim upon which relief can be granted, this Court entered a Memorandum Order on May 22, 2014, denying Plaintiff's motion to amend as futile. [ECF No. 35].

On June 19, 2014, Defendants filed a Motion to Dismiss Complaint [ECF No. 38], arguing that Plaintiff has failed to allege facts sufficient to sustain any claim asserted against any Defendant. On June 20, 2014, this Court issued an Order directing Plaintiff to file a response to Defendants' Motion to Dismiss [ECF No. 38].

On July 3, 2014, Plaintiff filed a second Motion for Leave to File an Amended Complaint. The two page motion was not accompanied by a proposed amended complaint, and broadly alleged the violation of his right to equal protection under the Sixth and Fourteenth Amendments to the United States Constitution. Plaintiff failed to allege any facts in support of these claims, with regard to the conduct of any individual Defendant. Upon review of the pleadings, the Court determined that an equal protection claim was alluded to in Plaintiff's initial Complaint. Plaintiff's motion to amend failed to allege any additional facts supporting his equal protection claim and as such, the Court entered an Order denying Plaintiff's second Motion for Leave to File an Amended Complaint. [ECF No. 41] In the Order, Plaintiff was reminded of his ongoing obligation to file a response to the Motion to Dismiss no later than July 21, 2014.

On July 17, 2014, Plaintiff filed an appeal of the Order denying leave to amend his complaint to the United States Court of Appeals for the Third Circuit. [ECF No. 43]. On October 28, 2014, Plaintiff's appeal was dismissed for failure to timely prosecute. [ECF No. 48].

Because Plaintiff failed to file his response to Defendants' Motion to Dismiss, this Court issued an Order to Show Cause on December 2, 2014, returnable on December 17, 2014, to show cause why this action should not be dismissed for failure to comply with a prior Court order. Plaintiff has filed objections to the Order to Show Cause [ECF No. 50] stating that he is entitled to pursue his action first, because this Court has twice denied his requests for the appointment of counsel and second, because he has sufficiently alleged claims entitling him to declaratory relief and compensatory and punitive damages for the violation of his constitutional rights. Plaintiff also renews his previous motion for appointment of counsel, but does not allege any additional facts not previously considered by this Court.

In an abundance of caution given Plaintiff's pro se status, rather than dismiss this action for failure to prosecute, the Court shall treat his objections as they appear intended, i.e, as a response to the Motion to Dismiss and as a renewed Motion for Appointment of Counsel. For the following reasons, the Motion for Appointment of Counsel is DENIED and Defendants' Motion to Dismiss is GRANTED with prejudice.


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 of 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).

A court need not accept inferences drawn by a 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 Sch. 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). A plaintiff's factual allegations "must be enough to raise a right to relief above the speculative level." Twombly, 550 U.S. at 556, citing 5C Wright & Miller, Federal Practice and Procedure ยง 1216, pp. 235-236 (3d ed. 2004). Although the United States Supreme Court does "not require heightened fact pleading of specifics, [the Court does require] enough facts to state a claim to relief that is plausible on its face." Id. at 570.

In other words, at the motion to dismiss stage, a plaintiff is "required to make a showing' rather than a blanket assertion of an entitlement to relief." Phillips v. County of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008). "This does not impose a probability requirement at the pleading stage, ' but instead simply calls for enough facts to raise a reasonable expectation that discovery ...

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