United States District Court, W.D. Pennsylvania
REPORT AND RECOMMENDATION RE: ECF NO. 10
MAUREEN P. KELLY CHIEF UNITED STATES MAGISTRATE JUDGE
before the Court is the Motion to Dismiss filed on behalf of
John Wetzel (“Wetzel”), pursuant to Federal Rule
of Civil Procedure 12(b)(6). ECF No. 10. Wetzel seeks
dismissal of all claims asserted in the pro se
Complaint filed by Plaintiff Steven Vogt
(“Plaintiff”). ECF No. 3. Plaintiff brings his
claims pursuant to 42 U.S.C. § 1983, and alleges the
violation of his rights under the First, Fifth, and
Fourteenth Amendments to the Constitution of the United
States. This Court exercises subject-matter jurisdiction
pursuant to 28 U.S.C. § 1331. For the reasons that
follow, it is recommended that Wetzel's Motion to Dismiss
FACTUAL AND PROCEDURAL BACKGROUND
context of the pending Motion to Dismiss, the following facts
alleged in Plaintiff's Complaint are accepted as true.
Erickson v. Pardus, 551 U.S. 89, 93-94 (2007).
Plaintiff is presently an inmate at the State Correctional
Institution at Fayette (“SCI-Fayette”), and is
serving a life sentence imposed following trial in the Court
of Common Pleas of Butler County. ECF No. 3 at 2. Beginning
in and around “late October 2016, ” SCI-Fayette
received a letter addressed to Plaintiff, but with no return
address. Id. at 2 - 3. Per Department of Corrections
Policy DC-ADM-803, any mail that arrives without a return
address is refused and not accepted for delivery by the
facility. Id. at 3. As a consequence, a
letter written by Arthur McClearn and sent to SCI-Fayette
during this time period was not provided to Plaintiff.
Id. The letter allegedly included a recantation of
trial testimony that contributed to Plaintiff's
conviction in the Court of Common Pleas of Butler County.
Id. McClearn died in January 2017. Id. at
alleges that it was Department of Corrections' policy to
reject mail missing a return address without providing notice
to the intended recipient. Id. at 3. Plaintiff
states that in April 2017, he learned that a friend's
letter was missing and the author later conveyed she was
concerned that she had not used a return address.
Id. Plaintiff states he sent inquiries to
“numerous Post Offices and the Mail Reclamation Center
asking if any mail addressed to [him] was being held as
undeliverable, and if so if it could be forwarded to [him or
a family member].” Id. On May 17, 2017, he
received an envelope containing several letters, apparently
forwarded by the United States Postal Service in response to
his inquiry. Plaintiff alleges one of the letters was from
upon the contents of McClearn's letter, Plaintiff filed a
petition pursuant to the Pennsylvania Post Conviction Relief
Act, 42 Pa. Cons. Stat. §§ 9541, et seq.
(“PCRA”), on June 6, 2017. Id. The
petition was denied because it was not filed within sixty
days of the date on the letter, and because the PCRA court
determined that an unsworn letter is not considered
acceptable evidence to repudiate sworn trial testimony.
Id. at 4.
indicated by the parties in supplemental briefing, on March
28, 2018, the Pennsylvania Superior Court vacated the
dismissal order and remanded Plaintiff's petition to the
trial court to permit consideration of whether
Plaintiff's request for habeas relief is timely; alleges
newly discovered facts; whether Plaintiff exercised diligence
in discovering those facts; and whether he filed his petition
within 60 days of the first date on which it could have been
filed. The Superior Court specifically noted that the
typewritten, unsigned letter bears a date that “does
not match the much earlier date on which the prison
apparently received it, ” requiring the authenticity of
the letter to be weighed by the trial court in the first
instance. Commonwealth v. Vogt, 2018 WL 1516372 *3
(Pa. Super. March 28, 2018).
commenced this action with the filing of a Motion for Leave
to Proceed In Forma Pauperis and his Complaint,
which was granted on November 6, 2017. ECF Nos. 1, 2. Through
the Complaint, Plaintiff alleges the violation of his due
process rights under the Fourteenth Amendment as a result of
Defendants' failure to provide notice of the rejection of
his incoming mail. Plaintiff next alleges the violation of
his due process rights under the Fifth Amendment - also for
rejection of incoming mail without notice. Finally, Plaintiff
alleges the violation of his right to access the courts under
the First and Fourteenth Amendments, because the lack of
notice regarding rejection of McClearn's letter allegedly
deprived Plaintiff of the ability to file a successful PCRA
January 18, 2018, Wetzel filed the instant Motion to Dismiss.
ECF No. 10. Briefs and supplemental materials have been
submitted by each party. ECF Nos. 11, 13, 15, 16. The Motion
to Dismiss is now ripe for disposition.
STANDARD OF REVIEW
Rule of Civil Procedure 8(a)(2) requires that a complaint
contain a short and plain statement of a claim, and show that
the pleader is entitled to relief. Dismissal of a complaint
or portion of a complaint is justified under Federal Rule of
Civil Procedure 12(b)(6) when a claimant fails to
sufficiently state a claim upon which relief can be granted.
Avoiding dismissal under Rule 12(b)(6) requires a pleading
party's complaint to provide “enough factual
matter” to allow the case to move beyond the pleading
stage of litigation; the pleader must “‘nudge his
or her claims across the line from conceivable to
plausible.'” Phillips v. Cnty. of
Allegheny, 515 F.3d 224, 234 - 35 (3d Cir. 2008)
(quoting Bell Atlantic Co. v. Twombly, 550 U.S. 544,
556, 570 (2007)).
assessing the merits of a claim subject to a motion to
dismiss, a court must engage in a two-part analysis.
Fowler v. UPMC Shadyside, 578 F.3d 203, 210 - 11 (3d
Cir. 2009). First, factual and legal elements of a claim must
be distinguished. Id. Second, it must be determined
whether the facts as alleged support a “plausible claim
for relief.” Id. In making the latter
determination, the court must be mindful that the matter
pleaded need not include “detailed factual allegations,
” Phillips, 515 F.3d at 231 (quoting
Twombly, 550 U.S. at 555), and the court must
construe all alleged facts, and draw all inferences gleaned
therefrom, in the light most favorable to the non-moving
party. Id. at 228 (citing Worldcom, Inc. v.
Graphnet, Inc., 343 F.3d 651, 653 (3d Cir. 2003)).
well-pleaded complaint, even when “it strikes a savvy
judge that actual proof of…facts is improbable,
” will not be dismissed as long as the pleader
demonstrates that his or her claim is plausible.
Phillips, 515 F.3d at 234 (quoting Twombly,
550 U.S. at 555 - 56). A pleading party need only “put
forth allegations that ‘raise a reasonable expectation
that discovery will reveal evidence of the necessary
element[s].'” Fowler, 578 F.3d at 213
(quoting Graff v. Subbiah Cardiology Assoc., Ltd.,
2008 WL 2312671 (W.D. Pa. June 4, 2008)). Moreover, pleadings
filed by pro se litigants are to be liberally
construed, and courts should be flexible when applying
procedural rules. Mala v. Crown Bay Marina, Inc.,
704 F.3d 239, 244 (3d Cir. 2013) (citing Higgs v.
Att'y Gen., 655 F.3d 333, 339 (3d Cir. 2011)).
the facts pled do need to raise the expectation of relief
above a purely speculative level, and must include more than
“labels and conclusions, and a formulaic recitation of
the elements of a cause of action.” Phillips,
515 F.3d at 231 - 32 (quoting Twombly, 550 U.S. at
554 - 56). Rule 8(a)(2) “requires a ‘showing'
rather than a blanket assertion of an entitlement to
relief.” Id. at 232. “[T]hreadbare
recitals of the elements of a cause of action, supported by
mere conclusory statements, do not suffice, ”
Fowler, 578 F.3d at 211 (quoting Ashcroft v.
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