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Rosa-Diaz v. Dow

United States District Court, W.D. Pennsylvania

February 23, 2015

GABRIEL ROSA-DIAZ, Plaintiff,
v.
SGT. DOW, et al., Defendants.

REPORT AND RECOMMENDATION

CYNTHIA REED EDDY, Magistrate Judge.

I. Recommendation

For the reasons that follow, it is respectfully recommended that the Partial Motion to Dismiss filed by Defendants (ECF No. 31) be granted. It is further recommended that Plaintiff not be provided leave to amend as it would be futile.

II. Report

A. Relevant and Material Facts[1]

Plaintiff, Gabriel Rosa-Diaz ("Plaintiff" or "Rosa-Diaz") is a state prisoner committed to the custody of the Pennsylvania Department of Corrections ("DOC") and currently confined at the State Correctional Institution in Marienville, Pennsylvania ("SCI-Forest"). The events giving rise to this lawsuit arise out of a fight Rosa-Diaz had with fellow inmate while he was confined at SCI-Cresson. As a result of the incident, Rosa-Diaz was issued two misconducts and was assessed for the other inmate's medical expenses.

On January 9, 2014, Rosa-Diaz initiated this Section 1983 prisoner civil rights action in which he raised multiple Eighth Amendment and Due Process claims in connection with the misconducts he received and the assessment process. The Complaint is 29 pages long with seven (7) purported claims against ten (10) defendants: Sgt. Dow, C/O Sheridan, K. Bearjar, R. Reed, A. Beck, K. Cameron, D. Varner, R.M. Lewis, John and Jane Does #1-3, [2] and J. Wetzel. Rosa-Diaz seeks compensatory and punitive damages.

According to the Complaint, on April 8, 2012, Inmate Robinson (who was housed in a different wing than Rosa-Diaz) was allowed to enter E Unit, B wing and confronted Rosa-Diaz. The men exchanged words because, according to the Complaint, Robinson was trying to extort money from Rosa-Diaz and threatened to stab him. (ECF No. 5, ¶¶ 13-29.) Rosa-Diaz claims that he reported this to Sgt. Dow that evening and told Sgt. Dow that he did not feel comfortable with Robinson continuing to be allowed to enter the B Wing. (Id. at ¶ 31.)

The next evening, at approximately 7:40 pm, Robinson entered the B Wing, walked past C/O Sheridan, and again approached Rosa-Diaz, who was sitting at a table playing dominos. Robinson started to attack Rosa-Diaz with two shanks; Rosa-Diaz tried to back away, but then began to defend himself. He punched Robinson and then grabbed a shank that Robinson had dropped and stabbed Robinson. (Id. at ¶¶ 34-44.)

Rosa-Diaz claims that C/O Sheridan initially "took off" in the other direction and did not come to help. At some point during the fight, Sgt. Dow grabbed Rosa-Diaz, at which time Rosa-Diaz yelled, "Get the fuck off me, you set me up." Rosa-Diaz contends that he then pulled away from Sgt. Dow and stood his ground as Sgt. Dow and other officers surrounded him. Rosa-Diaz eventually dropped his shank. Rosa-Diaz was bleeding and was taken to medical for his head wound. (Id. at ¶¶ 45-48.)

Rosa-Diaz received two (2) misconducts - one for fighting, written by C/O Sheridan, A800682; and another for threatening an employee, written by Sgt. Dow, A800686.[3] On April 12, 2012, a hearing on Misconduct A800682 was held before Hearing Examiner, Robert Reed who found Rosa-Diaz guilty of fighting, refusing to obey an order, and possession of contraband. Rosa-Diaz was sanctioned to a total of 270 days disciplinary time effective April 9, 2012, and it was recommended that Rosa-Diaz's inmate account be assessed "for costs associated with the incident."

On April 16, 2012, a hearing on Misconduct A800686 was held before Hearing Examiner Robert Reed who found Rosa-Diaz guilty of threatening an employee or their family with bodily harm. Rosa-Diaz was sanctioned to "90 days DC consecutive."

Rosa-Diaz appealed his misconducts, arguing that he acted in self-defense and that Sgt. Dow was responsible for his injuries because he gave Robinson permission to cross-over into B Wing. PRC affirmed the Hearing Examiner's determinations of guilt. PRC also received additional intelligence from Security that Rosa-Diaz was in possession of one of the shanks before the incident.

On April 13, 2012, Rosa-Diaz filed a Grievance (#408509) stating that due to Sgt. Dow's lack of security in allowing Robinson to cross over from A wing to B wing, he was attacked and suffered multiple stab wounds. Defendant Bearjar, the Unit Manager, denied the grievance on April 25, 2012, explaining that he spoke with C/O Kriss, who advised that Inmate Robinson was an IBO[4] representative for the activities department and was to be conducting IBO related business on B wing at the time of the incident. Bearjar also confirmed that there was no policy violation by staff as to Inmate Robinson's presence on B wing for IBO related business as there were no listed separations between Rosa-Diaz and Robinson. On appeal, Superintendent Cameron stressed that inmates are routinely permitted access to adjacent wings to conduct such activities and stated "[t]here was no indication of any problems between you and the other inmate, nor had you alerted staff to any concerns." On June 5, 2012, Defendant Varner, Chief Grievance Officer, upheld the decisions of the Grievance Officer and the Facility Manager in denying Rosa-Diaz's grievance and request for relief.

Rosa-Diaz was provided with an itemized bill for Robinson's medical expenses on May 23, 2012, and he requested a hearing on the assessment, which was held on July 10, 2012. Plaintiff was assessed $31, 414.30, as reflected in the relevant Holloway [5] hearing documents and Opinion, which are attached to the Complaint. ( See ECF No. 5-6.)

Plaintiff appears to be asserting various Eighth Amendment claims against Sgt. Dow - that Dow was responsible for Robinson coming into the unit and/or that Dow failed to take action on April 8, 2012, after allegedly being put on notice of Robinson's threat to stab Rosa-Diaz. Plaintiff also alleges that Dow and Sheridan issued false misconducts and that Hearing Examiner Reed was biased in finding Rosa-Diaz guilty of the misconducts. Plaintiff also faults Hearing Examiner Reed and the other remaining defendants (Cameron, Beck, Lewis, Wetzel, Varner and Bearjar) for failing to accept his version of events in connection with their handling of his grievance, misconducts, and related appeals.[6]

Rosa-Diaz also brings claims under Pennsylvania common law against Defendants Dow and Sheridan for negligence (Count Five) and intentional infliction of emotional distress (Count Six).

On June 13, 2014, Defendants filed a Partial Motion to Dismiss (ECF No. 23), to which Plaintiff responded in opposition. (ECF No. 26.) Shortly thereafter, Plaintiff sought leave to file an Amended Complaint. Rosa-Diaz was given leave to file an Amended Complaint and on August 15, 2014, he filed a document entitled "Amendments to Original Complaint, " a single page, letter format document which contains no additional factual allegations, but states the following, in toto :

Your Honor,
This new prison i am in is refusing to give me my legal papers and thus no inmate whom is willing to help me can help me.
A prisoner here told me to write you and explain this to you. He also told me not to panic because the District ...

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