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Short v. Webb

United States District Court, E.D. Pennsylvania

September 23, 2019

HARVEY PATRICK SHORT, Plaintiff,
v.
OFFICER WEBB, et al., Defendants.

          MEMORANDUM

          GERALD J. PAPPERT, J.

         Plaintiff Harvey Patrick Short, proceeding pro se and in forma pauperis, filed a Second Amended Complaint against Defendants Parole Agent Miller, Corrections Officer Webb, PREA Compliance Officer Owens, and John Doe Correction[s] Officer[1]which the Court dismisses in part for the reasons that follow.

         I

         Short alleges that he was on parole when, on October 31, 2017, Parole Agent Miller “tackled” him “to the ground and handcuffed [him] behind his back.” (Second Am. Compl. ¶ 2, ECF No. 7.) He asserts that Miller “jumped down” on his back, “slammed” his face and head into the concrete, and “dragged” him on the ground. Short alleges that “as a result of” Miller’s actions, his “eye was busted open and he sustained scars and lacerations with headaches, blurred vision, dizziness, skin irritation and bleeding.” (Id. ¶ 4.) He claims that “Miller refused and failed to take [him] to the hospital, ” that Miller instead transported him “to SCI-Graterford as a parole violator for absconding, ” and that Miller “communicated the physical attack to [Pennsylvania Department of Corrections] officers in the assessment area” when they arrived at SCI-Graterford. (Id. ¶¶ 5-7.)

         Next, Short alleges that Corrections Officer Webb and a John Doe defendant escorted him to a shower with a half-door in the assessment area that was visible from a hallway where about seven other inmates who were waiting for attention “could view” what was happening to Short. (Id. ¶ 9.) He alleges that the inmates standing in the hallway “were recorded on video surveillance.” (Id.) Once at the shower, Short alleges that he complied with Doe’s instruction to strip naked and to put his clothing in a box. (Id. ¶ 10.) He asserts that “Doe and a couple of other correction officers started laughing and humiliating [him] for the physical injuries and scars from Agent Miller’s attack.” (Id. ¶ 11.) Short contends that Doe then performed a strip search, including a visible body cavity search during which “Doe got very close up to” his rear end with a flashlight and “touched the Plaintiffs buttocks.” (Id. ¶ 17.) Short alleges that when he asked Doe what he was doing, Doe looked at him “and smiled.” (Id. ¶ 19.) Short purportedly complied with Doe’s instructions during the search (id. ¶ 15) and then complied with Doe’s instruction that he shower with a delousing agent. (Id. ¶ 20.) Short alleges that “Officer Webb was present when John Doe conducted the . . . body cavity search, and he did not intervene or stop it . . . .” (Id. ¶ 33.) Short asserts that after his “shower, a lieutenant showed up and took photographs of [his] injuries” from Miller’s alleged “attack.” (Id. ¶ 21.)

         Short contends that at some time after the shower, Webb and Doe read his legal mail after Short told the officers that it was legal mail. He alleges that “later, ” he saw “Nurse Stephanie” and “informed her that he wanted to file a [Prison Rape Elimination Act (‘PREA’)] complaint against John Doe and Officer Webb.” (Id. ¶ 23.) He contends the nurse then informed the officers of his intentions. (Id.)

         Short alleges he filed a PREA complaint, which was assigned to Owens for investigation and preparation of a final report. (Id. ¶ 24.) He contends that Owens showed him photographs of Nurse Stephanie, John Doe, and Officer Webb on the Pennsylvania Department of Corrections computer system but “refused to reveal their names and/or identities.” (Id. ¶ 27.) Short also alleges that “Owens hid, concealed, or destroyed video tape surveillance evidence and photographs to protect the other Defendants from suit.” (Id. ¶ 26.) He contends that she “failed to investigate and file a final report, failed to sanction Nurse Stephanie for violating PREA confidentiality requirements” and otherwise failed to fulfill her obligations in addressing his PREA complaint. (Id. ¶ 28.)

         II

         Defendants argue Short’s claims should be dismissed pursuant to 28 U.S.C. § 1915(g) which limits a prisoner’s ability to proceed in forma pauperis if he or she has had three or more prior actions or appeals dismissed as frivolous, malicious, or for failure to state a claim upon which relief may be granted. (Defs.’ Mem. at 4, ECF No. 14.) “[A] strike under § 1915(g) will accrue only if the entire action or appeal is (1) dismissed explicitly because it is ‘frivolous, malicious, or fails to state a claim’ or (2) dismissed pursuant to a statutory provision or rule that is limited solely to dismissals for such reasons, including (but not necessarily limited to) 28 U.S.C. §§ 1915A(b)(1), 1915(e)(2)(B)(i), 1915e(2)(B)(ii) or Rule 12(b)(6) of the Federal Rules of Civil Procedure.” Byrd v. Shannon, 715 F.3d 117, 126 (3d Cir. 2013). “[A] dismissal without prejudice for failure to state a claim does not rise to the level of a strike.” Millhouse v. Heath, 866 F.3d 152, 161 (3d Cir. 2017). Thus, for example, the dismissal of Plaintiff’s claims in Short v. Amtrak Corp., does not constitute a strike in this Circuit because the action was dismissed “without prejudice.” No. 06-389, 2007 WL 9718496, at *2 (E.D. N.C. Aug. 16, 2007). “[D]ismissal based on a prisoner’s failure to exhaust administrative remedies does not constitute a PLRA strike, unless a court explicitly and correctly concludes that the complaint reveals the exhaustion defense on its face and the court then dismisses the unexhausted complaint for failure to state a claim.” Ball v. Famiglio, 726 F.3d 448, 460 (3d Cir. 2013), abrogated in part on other grounds by Coleman v. Tollefson, __ U.S. __, 135 S.Ct. 1759, 1763 (2015). Similarly, a dismissal based on a defendant’s absolute or qualified immunity “does not constitute a PLRA strike, including a strike based on frivolousness, unless a court explicitly and correctly concludes that the complaint reveals the immunity defense on its face and dismisses the unexhausted complaint under Rule 12(b)(6) or expressly states that the ground for the dismissal is frivolousness.” Id. at 463.

         Short has been described as a “relentless litigator who has filed a multitude of suits without regard to applicable precedent or res judicata.” Short v. Davis, No. 10-785, 2011 WL 720203, at *1 (S.D.W.Va. Jan. 18, 2011), report and recommendation adopted, No. 10-785, 2011 WL 710574 (S.D.W.Va. Feb. 22, 2011); see also Short v. Rubenstein, No. 2:14-CV-16506, 2015 WL 7423814, at *3 (S.D.W.Va. Oct. 29, 2015) (“plaintiff is an experienced pro se litigant, having filed 19 prior civil cases in this court alone”), report and recommendation adopted in part, rejected in part, No. 2:14-CV-16506, 2015 WL 7430989 (S.D.W.Va. Nov. 20, 2015); Short v. Amtrak, 2007 WL 9718496, at *1 (“Indeed, Short has filed dozens of lawsuits and appeals while incarcerated.”). However, the Court cannot conclude that Section 1915(g) bars Short from pursuing his claims in this action without paying the Court’s filing fee because Defendants have not shown that he has accrued three strikes as defined under Third Circuit precedent.

         Short accrued a strike in this Court with the dismissal of his complaint with prejudice for failure to state a claim in Short v. Payne, No. 15-5873, 2016 WL 1594791, at *6 (E.D. Pa. Apr. 20, 2016) (dismissing Plaintiff’s complaint for failure to state a claim and denying leave to amend). He accrued a second strike in Short v. Bailey-Walker, [2]when the Court in the Southern District of West Virginia dismissed his case after adopting the proposed findings and recommendation of the Magistrate Judge, including a recommendation that the “presiding District Judge count this case as a frivolous case . . . .” No. 09-01096, 2009 WL 6327476, at *2 (S.D. W.Va. Oct. 26, 2009), report and recommendation adopted, 2010 WL 1379964 (S.D. W.Va. Mar. 30, 2010), aff’d, 393 Fed.Appx. 980 (4th Cir. 2010). Because the District Court adopted the Magistrate Judge’s explicit recommendation that Short’s complaint be dismissed as frivolous, the decision counts as a strike in accordance with the Third Circuit’s decision in Ball even though the Magistrate Judge also recommended that the Court dismiss Plaintiff’s claims because “Judge Bailey-Walker is absolutely immune from liability in this civil action.” Short v. Bailey-Walker, 2009 WL 6327476, at *2; see also Ball, 726 F.3d at 463.

         However, Defendants’ citations to other decisions regarding Short’s many lawsuits do not show that any of his numerous cases were dismissed in a way that constitutes a strike in this Circuit. Plaintiff’s claims in Short v. United States (No. 01-408, W.D. N.C. ) were dismissed at least in part because he had “not alleged nor provided any evidence that he ha[d] exhausted his administrative remedies.” (Defs.’ Supplemental Br., Ex. 3, ECF No. 15-3 at 13.) The decision does not clearly support the imposition of a strike because it does not reflect a conclusion that the exhaustion defense was “clear from the face of the complaint.” See Ball, 726 F.3d at 460 (“dismissal based on a prisoner’s failure to exhaust administrative remedies does not constitute a PLRA strike, unless a court explicitly and correctly concludes that the complaint reveals the exhaustion defense on its face”) (emphasis added). Dismissal of Short’s claims in Short v. Carper is not a strike in the Third Circuit because the dismissal was “without prejudice.” No. 07-00255, 2008 WL 652886, at *1 (S.D.W.Va. Mar. 10, 2008). In Short v. Manchin, the Court denied Plaintiff’s motion for leave to proceed in forma pauperis and his claims were dismissed without prejudice pursuant to § 1915(g). No. 10-28, 2010 WL 4975482, at *1 (N.D. W.Va. 2010). This type of dismissal likewise fails to satisfy the requirements set forth in Byrd and Millhouse v. Heath.

         Plaintiff may be a serial manipulator of the civil justice system, but the Court is precluded from requiring him to pay the filing fee before he is permitted to proceed with his claims in this action. The Court may later revoke Short’s in forma pauperis status if Defendants are able to show that any of his prior actions resulted in a decision that meets the Third Circuit’s requirements for a strike pursuant to Section 1915(g).

         III

         A

         Defendants also move to dismiss Plaintiffs’ Second Amended Complaint for failure to state a claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure. To survive dismissal, the complaint “must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is facially plausible when the facts pled “allow[ ] the court to draw the reasonable inference that [a] defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. “[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not ‘show[n]’- ’that the pleader is entitled to relief.’” Id. at 679 (quoting Fed.R.Civ.P. 8(a)(2)).

         When the complaint includes well-pleaded factual allegations, the Court “should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.” See Connelly v. Lane Const. Corp., 809 F.3d 780, 787 (3d Cir. 2016) (quoting Iqbal, 556 U.S. at 679). However, this “presumption of truth attaches only to those allegations for which there is sufficient factual matter to render them plausible on their face.” Schuchardt v. President of the U.S., 839 F.3d 336, 347 (3d Cir. 2016) (internal quotation and citation omitted). This plausibility determination is a “context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id. (quoting Connelly, 809 F.3d at 786–87).

         B

         Because Short is proceeding pro se, the Court “must liberally construe his pleadings.” Dluhos v. Strasberg, 321 F.3d 365, 369 (3d Cir. 2003) (citation omitted). “Courts are to construe complaints so ‘as to do substantial justice, ’ keeping in mind that pro se complaints in particular should be construed liberally.” Bush v. City of Phila., 367 F.Supp. 722, 725 (E.D. Pa. 2005) (quoting Alston v. Parker, 363 F.3d 229, 234 (3d Cir. 2004)). Moreover, in a § 1983 action, the Court must “apply the applicable law, irrespective of whether a pro se litigant has mentioned it by name.” Higgins v. Beyer, 293 F.3d 683, 688 (3d Cir. 2002) (quoting Holley v. Dep’t of Veteran Affairs, 165 F.3d 244, 247–48 (3d Cir. 1999)); see also Nami v. Fauver, 82 F.3d 63, 65 (3d Cir. 1996) (“Since this is a § 1983 action, the [pro se] plaintiffs are entitled to relief if their complaint sufficiently alleges deprivation of any right secured by the Constitution.”). At the same time, pro se litigants ...


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