United States District Court, W.D. Pennsylvania
Barbara Rothstein District Judge.
REPORT AND RECOMMENDATION
Pupo Lenihan United States Magistrate Judge.
action, Plaintiff, proceeding pro se and in
forma pauperis, brings suit pursuant to 42 U.S.C. §
1983. Plaintiff complains that Defendants unconstitutionally
agreed to and did commit several wrongful acts while
Plaintiff was incarcerated at State Correctional Institution
Forest (“SCI Forest”). Plaintiff's
allegations center on Defendants' collective attempts to
prevent Plaintiff from exposing the fact that a non-party,
Detective Lubiejewski, framed Plaintiff for the crimes that
resulted in his incarceration.
Defendants have moved to dismiss Plaintiff's Second
Amended Complaint. Defendant Zupsic has filed a Motion to
Dismiss Plaintiff's Second Amended Complaint pursuant to
Federal Rule of Civil Procedure 12(b)(6) [ECF No. 50]. The
remaining Defendants (“DOC Defendants”) have
filed a Motion to Dismiss, based on Federal Rules of Civil
Procedure 12(e), 8(a), 10, and 20(a) [ECF
No. 59]. Plaintiff, in turn, has filed a “Motion that
Summary Judgment be Denied.” [ECF No. 70]. It is
respectfully recommended that Defendants' Motions be
granted and Plaintiff's denied, and Plaintiff's
Second Amended Complaint be dismissed without prejudice.
initial Complaint [ECF No. 3] named multiple Defendants,
including psychologists, unit managers, corrections
counselors, correctional officers, and other health and
correctional personnel connected to SCI Forest. The Complaint
alleged that Defendants committed several wrongful acts in an
effort to silence Plaintiff concerning Lubiejewski's
wrongdoing. Defendants filed a Motion for a More Definite
Statement [ECF No.21], which this Court granted by Order
dated February 13, 2017 (“February 13 Order”).
[ECF No. 23]. The Order, which directed Plaintiff to file an
Amended Complaint by March 6, 2017, specified that Plaintiff
must provide a description of how the defendants violated his
rights, and explained that he must show that each defendant
was personally involved in the alleged wrongdoing.
Id. at p.
Further, the Order stated as follows:
Plaintiff should note that, in civil rights cases, more than
conclusory and vague allegations are required to state a
cause of action under 42 U.S.C. §1983. Plaintiff should
clearly describe how each named
defendant is involved in the alleged
constitution [sic] violations. This description should
include references to relevant dates, times, and
locations. It should explain to the Court what
happened by specifically describing
each defendant's behavior or
action and how that behavior or action - or lack of action -
resulted in the alleged violations….Plaintiff should
be specific about the particulars of the event, each
defendant's misconduct, and how such misconduct resulted
in a violation or denial of the civil right at
issue….Each incident should be identified as a
separate count, and each count must include appropriate facts
and evidence in support of the claims made in the count. Each
incident must be clearly and specifically described; it
should include the relevant time, date, and location. Each
incident description also should clearly identify the
relevant defendant and what that defendant's role was in
Id. at pp. 2-3 (emphases in original).
docket reflects no subsequent activity until April 7, 2017,
when the Court issued an Order to Show Cause why the case
should not be dismissed for failure to comply with the
February 13 Order. [ECF No. 24]. On May 31, 2017, because
Plaintiff did not respond to the Order to Show Cause, the
Court issued a Report and Recommendation that the action be
dismissed for failure to prosecute. [ECF No. 25]. Plaintiff
then objected to the Report and Recommendation, stating that
he had attempted to file an Amended Complaint and comply with
the February 13 Order. [ECF No. 26]. Consequently, the Court
afforded Plaintiff until July 5, 2017 to amend his pleading.
[ECF No. 27]. Plaintiff filed an Amended Complaint [ECF No.
29], and the Court withdrew the Report and Recommendation as
moot. [ECF No. 30].
Defendants moved to dismiss the Amended Complaint, arguing
that it was indecipherable and failed to comply with Federal
Rule of Civil Procedure 8, failed to identify how each
Defendant was involved in the alleged wrongdoing, and
violated joinder principles. [ECF Nos. 33, 34]. The Court
issued an Order stating that if Plaintiff were to file a
Second Amended Complaint, he should correct the deficiencies
noted by Defendants, and comply with federal pleading
requirements. [ECF No. 35]. In response, Plaintiff filed
documents captioned “Addendum to Response, ” and
“2nd Definitive Statement of Facts.”
[ECF. Nos. 41, 43]. He then filed the now-pending Second
Amended Complaint. [ECF No. 44], and the DOC Defendants'
Motion to Dismiss was dismissed as moot. [ECF No. 47].
to the Second Amended Complaint, at the time of the incidents
giving rise to this matter, Plaintiff was incarcerated at SCI
Forest. He brings claims pursuant to 42 U.S.C.§ 1983,
averring that Defendants, acting individually and in their
official capacities, caused other inmates to physically
attack him, conspired to have him transferred to a different
facility and misdiagnosed with a mental illness, and
misappropriated his funds, all in an attempt to cover up
Lubiejewski's malfeasance. Specifically, Plaintiff
contends that Lubiejewski framed him for the crimes resulting
in Plaintiff's incarceration.
Zupsic has filed a Motion to Dismiss the Second Amended
Complaint pursuant to Rule 12(b)(6), arguing that the
pleading fails to aver that she was individually involved in
the alleged violations, and that Plaintiff has failed to
exhaust his administrative remedies. [ECF No. 45]. The Court
apprised the parties that the exhaustion challenge would be
considered pursuant to Federal Rule of Civil Procedure 56,
and directed Defendant to provide Plaintiff with all
pertinent documents in her possession. [ECF No. 48]. The DOC
Defendants have also filed a Motion to Dismiss the Second
Amended Complaint, arguing that the pleading is too vague and
disorganized to permit a meaningful response, violates
joinder rules, and fails to properly plead a conspiracy
claim. [ECF No. 60]. Plaintiff, in turn, has filed a
“Motion that Summary Judgment be Denied, ”
reiterating his allegations against Defendants. [ECF No. 70].
Rule 12(b)(6), a complaint must be dismissed for failure to
state a claim 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, 556,
127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). When considering a
Rule 12(b)(6) motion, the court does not assess whether a
plaintiff might prevail on the merits; instead, the court
must accept all well-pleaded factual allegations and view
them in a light most favorable to the plaintiff.
Papurello v. State Farm Fire & Cas. Co., 144
F.Supp.3d 746, 760 (W.D. Pa. 2015).
Court of Appeals has explained the applicable standard as
A complaint may be dismissed under Rule 12(b)(6) for
"failure to state a claim upon which relief can be
granted"…."To survive a motion to dismiss, a
complaint must contain sufficient factual matter, accepted as
true, to state a claim to relief that is plausible on its
face." "A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged." Although the plausibility
standard "does not impose a probability requirement,
" it does require a pleading to show "more than a
sheer possibility that a defendant has acted
unlawfully." … The plausibility determination ...