DAVIS v. OVERMYER et al, No. 1:2014cv00200 - Document 37 (W.D. Pa. 2015)
Court Description: MEMORANDUM OPINION & ORDER GRANTING 22 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by MONGELLUZZO, YOUNT, GRIFFEN, KIMBERLY SMITH, LENHART, DICKEY, MICHAEL OVERMYER, BERRY, MURIN; GRANTING 14 MOTION to Dismiss Plaintiff's Complaint filed by PRISON HEALTH SERVICES, INC.; GRANTING 20 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by HAREWOOD; GRANTING 18 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM, in the alternative, Motion for Summary Judgment filed by ABRAHAM; an d DISMISSING Plaintiff's claims against Defendant Moussa for failure to prosecute, based on Plaintiff's failure to serve said Defendant within 120 days pursuant to Fed.R.Civ.P. 4(m). The Clerk is directed to mark this case closed. Signed by Magistrate Judge Susan Paradise Baxter on 06/30/2015. (fcf)
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DAVIS v. OVERMYER et al Doc. 37 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA ROBERT DAVIS, Plaintiff v. MICHAEL OVERMYER, et al., Defendants. ) ) ) ) ) ) ) C.A. 14-200 Erie Magistrate Judge Baxter OPINION AND ORDER1 United States Magistrate Judge Susan Paradise Baxter I. INTRODUCTION A. Relevant Procedural and Factual History On July 22, 2014, Plaintiff Robert Davis, a prisoner formerly incarcerated at the State Correctional Institution at Forest in Marienville, Pennsylvania (ASCI-Forest@)2, filed this pro se civil rights action pursuant to 42 U.S.C. ' 1983. Named as Defendants are: Michael Overmyer, Superintendent at SCI-Forest (“Overmyer”); Lieutenant Murin, corrections officer at SCI-Forest (“Murin”); Mongelluzzo, Shift Commander at SCI-Forest (“Mongelluzzo”); Corrections Officers “Griffen,” “Berry,” “Lenhart,” “Yount,” and “Dickey;” Kimberly Smith, Medical Director at SCI-Forest (“Smith”); Prison Health Services, Inc. (“PHS”); unidentified “Individual Insurance Companies” and “General Insurance Companies;” Dr. Rami Abraham (“Abraham”) and Dr. Harewood (“Harewood”), physicians under contract to provide medical services to inmates at 1 The parties have consented to having a United States Magistrate Judge exercise jurisdiction over this matter. [ECF Nos. 4, 25, 26, 27, 36]. 2 Plaintiff is currently incarcerated at the State Correctional Institution at Camp Hill, Pennsylvania. Dockets.Justia.com SCI-Forest; and Dr. Moussa (“Moussa”).3 For ease of reference, Defendants Overmyer, Murin, Mongelluzzo, Griffen, Berry, Lenhart, Yount, Dickey, and Smith are hereafter collectively referred to as “DOC Defendants,” where appropriate. Plaintiff alleges that Defendants violated his rights under the eighth and fourteenth amendments to the United States Constitution. In particular, Plaintiff claims that Defendants Griffen, Yount, Dickey, Lenhart, and Berry used excessive force against him on May 21, 2014, which was allegedly condoned by Defendants Overmyer, Murin, and Mongelluzzo; and Defendants Smith, PHS, Abraham, Harewood, Moussa, Individual Insurance Companies, and General Insurance Companies were deliberately indifferent to his serious medical needs resulting from the alleged use of force. (ECF No. 3, Complaint, at Section IV.C.). As relief for his claims, Plaintiff seeks injunctive relief and monetary damages. On November 3, 2014, Defendant PHS filed a motion to dismiss [ECF No. 14], arguing that it is not a proper party to this lawsuit because it was not the contracted medical health care provide at SCI-Forest in May 2014. On December 1, 2014, Defendant Abraham filed a motion to dismiss, or in the alternative, motion for summary judgment [ECF No. 18], asserting, inter alia, that Plaintiff has failed to exhaust his administrative remedies. On the same date, Defendant Harewood and the DOC Defendants each filed a motion to dismiss [ECF Nos. 20, 22] also asserting, inter alia, that Plaintiff failed to exhaust his administrative remedies. Despite having been given ample time to do so, Plaintiff has failed to file a response to any of Defendants’ 3 Unidentified Defendants “Individual Insurance Companies” and “General Insurance Companies,” as well as Defendant Moussa, have not been served with the complaint in this case, nor are they represented by any attorney in this matter. pending motions. This matter is now ripe for consideration. B. Standard of Review 1. Motion to Dismiss 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 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 Aenough 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). The Court need not accept inferences drawn by 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 School 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). AFactual allegations must be enough to raise a right to relief above the speculative level.@ Twombly, 550 U.S. at 555. Although the United States Supreme Court does Anot 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. 3 In other words, at the motion to dismiss stage, a plaintiff is Arequired to make a >showing= rather than a blanket assertion of an entitlement to relief.@ Smith v. Sullivan, 2008 WL 482469, at *1 (D.Del. February 19, 2008) quoting Phillips v. County of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008). AThis >does not impose a probability requirement at the pleading stage,= but instead >simply calls for enough facts to raise a reasonable expectation that discovery will reveal evidence of= the necessary element.@ Phillips, 515 F.3d at 234, quoting Twombly, 550 U.S. at 556. The Third Circuit Court has prescribed the following three-step approach to determine the sufficiency of a complaint under Twombly and Iqbal: First, the court must >tak[e] note of the elements a plaintiff must plead to state a claim.= Second, the court should identify allegations that, >because they are no more than conclusions, are not entitled to the assumption of truth.= Finally, >where there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement for relief.= Burtch v. Milberg Factors, Inc., 662 F.3d 212, 221 (3d Cir. 2011), citing Santiago v. Warminster Twp., 629 F.3d 121, 130 (3d Cir. 2010) (quoting Iqbal, 129 S.Ct. at 1947, 1950); see also Great Western Mining & Min. Co. v. Rothschild LLP, 615 F.3d 159, 177 (3d Cir. 2010). 2. Summary Judgment Federal Rule of Civil Procedure 56(c)(2) provides that summary judgment shall be granted if the “pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment 4 as a matter of law.” Rule 56(e)(2) further provides that when a motion for summary judgment is made and supported, “an opposing party may not rely merely on allegations or denials in its own pleading; rather, its response must – by affidavits or as otherwise provided in this rule – set out specific facts showing a genuine issue for trial. If the opposing party does not so respond, summary judgment should, if appropriate, be entered against that party.” A district court may grant summary judgment for the defendant when the plaintiff has failed to present any genuine issues of material fact. Fed.R.Civ.P. 56(c). The moving party has the initial burden of proving to the district court the absence of evidence supporting the nonmoving party’s claims. Celotex Corp. v. Catrett, 477 U.S. 317, 330 (1986); Andreoli v. Gates, 482 F.3d 641, 647 (3d Cir. 2007); UPMC Health System v. Metropolitan Life Ins. Co., 391 F.3d 497, 502 (3d Cir. 2004). The burden then shifts to the non-movant to come forward with specific facts showing a genuine issue for trial. Fed.R.Civ.P. 56(e); Williams v. Borough of West Chester, Pa., 891 F.2d 458, 460-461 (3d Cir. 1989)(the non-movant must present affirmative evidence - more than a scintilla but less than a preponderance - which supports each element of his claim to defeat a properly presented motion for summary judgment). The non-moving party must go beyond the pleadings and show specific facts by affidavit or by information contained in the filed documents (i.e., depositions, answers to interrogatories and admissions) to meet his burden of proving elements essential to his claim. Celotex, 477 U.S. at 322. See also Saldana v. Kmart Corp., 260 F.3d 228, 232 (3d Cir. 2001). The non-moving party “must present more than just bare assertions, conclusory allegations or suspicions to show the existence of a genuine issue.” Garcia 5 v. Kimmell, 2010 WL 2089639, at * 1 (3d Cir. 2010) quoting Podobnik v. U.S. Postal Serv., 409 F.3d 584, 594 (3d Cir. 2005). When considering a motion for summary judgment, the court is not permitted to weigh the evidence or to make credibility determinations, but is limited to deciding whether there are any disputed issues and, if there are, whether they are both genuine and material. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). The court must consider the evidence, and all reasonable inferences which may be drawn from it, in the light most favorable to the non-moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). See also El v. SEPTA, 479 F.3d 232, 238 (3d Cir. 2007). A material fact is a fact whose resolution will affect the outcome of the case under applicable law. Anderson, 477 U.S. at 248. Summary judgment is only precluded if the dispute about a material fact is “genuine,” i.e., if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Id. at 247-249. 3. Pro Se Pleadings Pro se pleadings, Ahowever inartfully pleaded,@ must be held to Aless stringent standards than formal pleadings drafted by lawyers@ Haines v. Kerner, 404 U.S. 519, 520 (1972). If the court can reasonably read pleadings to state a valid claim on which the litigant could prevail, it should do so despite failure to cite proper legal authority, confusion of legal theories, poor syntax and sentence construction, or litigant=s unfamiliarity with pleading requirements. See Boag v. MacDougall, 454 U.S. 364 (1982); United States ex rel. Montgomery v. Brierley, 414 6 F.2d 552, 555 (3d Cir. 1969)(Apetition prepared by a prisoner... may be inartfully drawn and should be read >with a measure of tolerance=@); Freeman v. Department of Corrections, 949 F.2d 360 (10th Cir. 1991). Under our liberal pleading rules, a district court should construe all allegations in a complaint in favor of the complainant. Gibbs v. Roman, 116 F.3d 83 (3d Cir.1997)(overruled on other grounds). See, e.g., Nami v. Fauver, 82 F.3d 63, 65 (3d Cir. 1996)(discussing Fed.R.Civ.P. 12(b)(6) standard); Markowitz v. Northeast Land Company, 906 F.2d 100, 103 (3d Cir. 1990)(same). Because Plaintiff is a pro se litigant, this Court will consider facts and make inferences where it is appropriate. II. DISCUSSION A. Defendant PHS Defendant PHS argues that it should be dismissed from this case as an improper party because it was not the contracted health care provider for SCI-Forest on May 21, 2014, the date on which the alleged assault of Plaintiff occurred. In fact, Defendant PHS has shown that it has not been the contracted medical health care provider for any of Pennsylvania’s state correctional facilities since December 21, 2012. [ECF No. 15-1]. As a result, Plaintiff’s claims against Defendant PHS will be dismissed. B. Exhaustion 1. Exhaustion Requirement of the Prison Litigation Reform Act The Prison Litigation Reform Act (APLRA@), 42 U.S.C. ' 1997e(a), provides: no action shall be brought with respect to prison conditions under section 1983 of this title ... by a prisoner confined in any jail, prisons, or other correctional facility until such administrative remedies as are available 7 are exhausted. Id. (Emphasis added). The requirement that an inmate exhaust administrative remedies applies to all inmate suits regarding prison life, including those that involve general circumstances as well as particular episodes. Porter v. Nussle, 534 U.S. 516 (2002). See also Concepcion v. Morton, 306 F.3d 1347 (3d Cir. 2002) (for history of exhaustion requirement). Administrative exhaustion must be completed prior to the filing of an action. McCarthy v. Madigan, 503 U.S. 140, 144 (1992). Federal courts are barred from hearing a claim if a plaintiff has failed to exhaust all the available remedies. Grimsley v. Rodriquez, 113 F.3d 1246 (Table), 1997 WL 2356136 (Unpublished Opinion) (10th Cir. May 8, 1997).4 The exhaustion requirement is not a technicality, rather it is federal law which federal district courts are required to follow. Nyhuis, 204 F.3d at 73 (by using language Ano action shall be brought,@ Congress has Aclearly required exhaustion@). There is no Afutility@ exception to the administrative exhaustion requirement. Ahmed v. Dragovich, 297 F.3d 201, 206 (3d Cir. 2002) citing Nyhuis, 204 F.3d at 78. According to the U.S. Supreme Court, the PLRA requires Aproper exhaustion,@ meaning that a prisoner must complete the administrative review process in accordance with the applicable procedural rules, including deadlines. Woodford v. Ngo, 548 U.S. 81, 126 S.Ct. 2378, 2387-2388 (June 22, 2006) (AProper exhaustion demands compliance with an agency=s deadlines 4 Importantly, a plaintiff=s failure to exhaust his administrative remedies does not deprive the district court of subject matter jurisdiction. Nyhuis v. Reno, 204 F.3d 65, 69 n.4 (3d Cir. 2000) (A...[W]e agree with the clear majority of courts that ' 1997e(a) is not a jurisdictional requirement, such that failure to comply with the section would deprive federal courts of subject matter jurisdiction.@). 8 and other critical procedural rules ...@). Importantly, the exhaustion requirement may not be satisfied Aby filing an untimely or otherwise procedurally defective ... appeal.@ Id. A plaintiff need not affirmatively plead exhaustion, but exhaustion is an affirmative defense which is waived if not properly presented by a defendant. Ray v. Kertes, 285 F.3d 287 (3d Cir. 2002) (holding that Ano provision of the PLRA requires pleading exhaustion with particularity,@ while construing the PLRA requirements in light of the Supreme Court decision in Swierkiewicz v. Sorema, N.A., 534 U.S. 506 (2002)). It is the burden of a defendant asserting the defense to plead and prove it. Id. b. Procedural Default Component The United States Court of Appeals for the Third Circuit has explicitly held that the exhaustion requirement of the PLRA includes a procedural default component, by analogizing it to the exhaustion doctrine (with its corollary procedural default component) in the habeas context. Spruill v. Gillis, 372 F.3d 218, 228-229 (3d Cir. 2004).5 The Circuit explained: We believe that Congress's policy objectives will be served by interpreting ' 1997e(a)'s exhaustion requirement to include a procedural default component. Based on our earlier discussion of the PLRA's legislative history, [...] Congress seems to have had three interrelated objectives relevant to our inquiry here: (1) to return control of the inmate grievance process to prison administrators; (2) to encourage development of an administrative record, and perhaps settlements, within the inmate grievance process; and (3) to reduce the burden on the federal courts by erecting barriers to frivolous prisoner lawsuits. Each of these goals is better served by interpreting ' 1997e(a)'s exhaustion language to include a procedural default component than by interpreting it merely to require 5 There is a split of authority among the Circuits on this issue. Compare Berry v. Kerik, 366 F.3d 85 (2d Cir. 2004), Ross v. County of Bernalillo, 365 F.3d 1181 (10th Cir. 2004), and Pozo v. McCaughtry, 286 F.3d 1022 (7th Cir. 2002), with Thomas v. Woolum, 337 F.3d 720 (6th Cir. 2003). 9 termination of all administrative grievance proceedings. Id. Having concluded that the PLRA includes a procedural default component, the Court then indicated that Aprison grievance procedures supply the yardstick for measuring procedural default.@ Id. at 231. To exhaust the administrative remedies within the DOC=s grievance system, a grievance must be appealed through all administrative levels of appeal at the inmate=s institution and the DOC inmate-initiated grievances must follow the procedures set forth in Administrative Directive 804 (ADC-ADM 804@), which is included as part of the inmate handbook distributed to each inmate. The first step in the grievance process is for the inmate to file a claim with the institution=s grievance officer. The grievance officer will investigate a grievance and provide the inmate with an Initial Review Response, which includes Aa brief rationale, summarizing the conclusions and any action taken or recommended to resolve the issues raised in the grievance.@ DC-ADM 804 VI(B)(4). If the inmate is not satisfied with the Initial Review Response, there are two levels of appeal he must pursue to exhaust his claim: (1) an appeal within five days of his receipt of the Initial Review Response to the prison superintendent and, if the appeal is denied, (2) an appeal to the DOC Secretary=s Office of Inmate Grievances and Appeals (ADOC Secretary@). DC-ADM 804 VI(C)(1). 10 c. Exhaustion and Procedural Default Applied Defendant Abraham, Defendant Harewood, and the DOC Defendants each contend that Plaintiff has failed to exhaust his administrative remedies with regard to his claims. In support of this contention, Defendant Abraham has submitted a letter from Tracy Williams, Assistant Chief Grievance Coordinator with the DOC, which was written on November 17, 2014, in response to a subpoena requesting a full and complete copy of Plaintiff’s grievance records. [ECF No. 19-1]. In this letter, Ms. Williams declares as follows: We are in receipt of your request to produce any and all grievance records for Robert Davis, PA DOC inmate number HZ-5342. I have reviewed the paper files and electronic records and there have been no grievances appealed to final review level. Therefore, there are no records in our possession in this office. He did file grievances at the facility level but did not appeal… Plaintiff has failed to provide any response refuting or attempting to excuse his failure to file any appeal from the denial of his grievances. Thus, the Court finds on the basis of the record evidence that Plaintiff has failed to exhaust his administrative remedies with regard to the claim asserted in this case, and he is now procedurally defaulted from doing so. Based on the foregoing, Defendants= motions to dismiss [ECF Nos. 18, 20, 22] will be granted. C. Prison Litigation Reform Act The Prison Litigation Reform Act provides that: (b) Grounds for dismissalB On review, the court shall identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaintB (1) is frivolous, malicious, or fails to state a claim upon which relief may be granted; or (2) seeks monetary relief from a defendant who is immune from such relief. 11 28 U.S.C.A. ' 1915A. Under Section 1915A, not only is a court permitted to sua sponte dismiss a complaint which fails to state a claim, but it is required to do so. Nieves v. Dragovich, 1997 WL 698490, at *8 (E.D. Pa. 1997)(AUnder provisions of the Prison Litigation Reform Act codified at 28 U.S.C. '' 1915A, 1915(e) and 42 U.S.C. ' 1997e(c), the district courts are required, either on the motion of a party or sua sponte, to dismiss any claims made by an inmate that are frivolous or fail to state a claim upon which relief could be granted.@). The PLRA also amended the statutory provisions with respect to actions brought by prisoners who are proceeding in forma pauperis. See 28 U.S.C. '1915(e)(2).6 Under this provision as well, not only is a court permitted to sua sponte dismiss a complaint which fails to state a claim, but it is required to do so by mandatory language. See, e.g., Keener v. Pennsylvania Bd. of Probation and Parole, 128 F.3d 143, 145 n.2 (3d Cir. 1997) (describing 28 U.S.C. ' 1915(e)(2)(B) as Athe PLRA provision mandating sua sponte dismissal of in forma pauperis actions that are frivolous or fail to state a claim.@). In performing a court=s mandated function of sua sponte reviewing a complaint under 28 U.S.C. ' 1915(e) and under ' 1915A to determine if it fails to state a claim upon which relief can be granted, a federal district court applies the same standard applied to motions to dismiss under Federal Rule of Civil Procedure 12(b)(6). See, e.g., Tucker v. Angelone, 954 F. Supp. 134, 135 (E.D. Va. 1977) (AUnder 28 U.S.C. '' 1915A, 1915(e) and 42 U.S.C. ' 1997e(c) the courts are directed to dismiss any claims made by inmates 6 Title 28 U.S.C. '1915(e)(2) provides: ANotwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that--(B) the action or appeal--(i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief.@ 12 that >fail to state a claim upon which relief could be granted=@). As noted earlier, the unidentified Defendants Individual Insurance Companies and General Insurance Companies, as well as Defendant Moussa, have never been served in this case, nor has any attorney entered an appearance on their behalf. As a result, said Defendants will be dismissed from this case pursuant to Rule 4(m) of the Federal Rules of Civil Procedure, as they were not served within 120 days of the date the complaint was filed in this case. An appropriate Order follows. 13 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA ROBERT DAVIS, Plaintiff v. MICHAEL OVERMYER, et al., Defendants. ) ) ) ) ) ) ) C.A. 14-200 Erie Magistrate Judge Baxter ORDER AND NOW, this 30th day of June, 2015, IT IS HEREBY ORDERED that the motions to dismiss filed by Defendant PHS [ECF No. 14], Defendant Abraham [ECF No. 18], Defendant Harewood [ECF No. 20], and the DOC Defendants [ECF No. 22] are GRANTED, and Plaintiff’s claims against said Defendants are DISMISSED. IT IS FURTHER ORDERED that, pursuant to the authority granted by the PLRA, Plaintiff’s claims against unidentified Defendants Individual Insurance Companies and General Insurance Companies, as well as Defendant Moussa, are DISMISSED for failure to prosecute, pursuant to Rule 4(m) of the Federal Rules of Civil Procedure. The Clerk is directed to mark this case closed. /s/ Susan Paradise Baxter SUSAN PARADISE BAXTER United States Magistrate Judge 14
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