Banks v. Smith
| Decision Date | 30 May 2019 |
| Docket Number | CIVIL ACTION NO. 3:19-CV-0427 |
| Parties | MARVIN BANKS, Plaintiff v. TERRY SMITH, et al., Defendants |
| Court | U.S. District Court — Middle District of Pennsylvania |
(Judge Caputo)
Plaintiff Marvin Banks, an inmate presently housed at the Benner Township State Correctional Institution (SCI-Benner), in Bellefonte, Pennsylvania, commenced this civil rights action pursuant to 42 U.S.C. § 1983 on March 6, 2019. (ECF No. 1.) Prior to the Court screening Mr. Banks' Complaint, he filed a "supplemental complaint," supporting declarations and exhibits. (ECF Nos. 10, 11, 12 and 14.) Mr. Banks simultaneously sought leave to proceed in forma pauperis (ECF Nos. 3 and 8) and a request appointment of counsel (ECF No. 2).
For the reasons set forth below, and pursuant to 28 U.S.C. § 1915 and §1915A, the Court will grant Mr. Banks' request to proceed in forma pauperis, dismiss portions of the Complaint, dismiss the Supplemental Complaint in its entirety, and grant Plaintiff leave to file an all-inclusive amended complaint. His motion for counsel will be denied without prejudice.
When a litigant seeks to proceed in forma pauperis, without payment of fees, 28 U.S.C. § 1915 requires the court to screen the complaint. See 28 U.S.C. § 1915(e)(2)(B). Likewise, when a prisoner seeks redress from a government defendant in a civil action, whether proceeding in forma pauperis or not, the court must screen the complaint. See 28 U.S.C. § 1915A(a). Both 28 U.S.C. § 1915(e)(2)(B) and § 1915(A) give the court the authority to dismiss a complaint if it is frivolous, malicious, fails to state a claim on which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. See 28 U.S.C. § 1915(e)(2)(B)(i) -(iii); 28 U.S.C. § 1915A(b)(1)-(2); Ball v. Famiglio, 726 F.3d 448, 452 (3d Cir. 2013).
A complaint is frivolous if it lacks an asrguable basis either in law or fact. See Mitchell v. Horn, 318 F.3d 523, 530 (3d Cir. 2003) (citing Neitzke v. Williams, 490 U.S. 319, 327-28, 109 S.Ct. 1827, 1832-33, 104 L.Ed.2d 338 (1989)). In deciding whether the complaint fails to state a claim on which relief may be granted, the court employs the standard used to analyze motions to dismiss under Fed. R. Civ. P. 12(b)(6). See Allah v. Seiverling, 229 F.3d 220, 223 (3d Cir. 2000). Under Rule 12(b)(6), the court "must accept all of the complaint's well-pleaded facts as true, but may disregard any legal conclusions." Fowler v. UPMC Shadyside, 578 F.3d 203, 210-11 (3d Cir. 2009) (citing Ashcroft v. Iqbal, 556 U.S. 662, 678-79, 129 S.Ct. 1937, 1949-50, 173 L.Ed.2d 868 (2009)). The court may also rely on exhibits attached to the complaint and matters of public record. Sands v. McCormick, 502 F.3d 263, 268 (3d Cir. 2007).
A complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief . . ." Fed. R. Civ. P. 8(a)(2). A complaint is required toprovide "the defendant fair notice of what the . . . claim is and the grounds upon which it rests." Phillips v. Cnty. of Allegheny, 515 F.3d 224, 232 (3d Cir. 2008) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964, 167 L.Ed.2d 929 (2007)).
To test the sufficiency of the complaint, the court "must take three steps." Connelly v. Lane Constr. Corp., 809 F.3d 780, 787 (3d Cir. 2016). First, a court must "take note of the elements a plaintiff must plead to state a claim." Id. (internal quotations and brackets omitted). Second, the court must identify allegations that are merely legal conclusions "because they . . . are not entitled to the assumption of truth." Id. While detailed factual allegations are not required, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Iqbal, 556 U.S. at 678, 129 S.Ct. at 1949 (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964, 167 L.Ed.2d 929 (2007)). Third, a court should assume the veracity of all well-pleaded factual allegations and "then determine whether they plausibly give rise to an entitlement to relief." Connelly, 809 F.3d at 787 (quoting Iqbal, 556 U.S. at 679, 129 S.Ct. at 1949).
A complaint filed by a pro se plaintiff must be liberally construed and "held 'to less stringent standards than formal pleadings drafted by lawyers.'" Fantone v. Latini, 780 F.3d 184, 193 (3d Cir. 2015) (citing Haines v. Kerner, 404 U.S. 519, 520 - 21, 92 S.Ct. 594, 596, 30 L.Ed.2d 652 (1972)); see also Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 2200, 167 L.Ed.2d 1081 (2007). Yet, even a pro se plaintiff "must allege sufficient facts in their complaints to support a claim." Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 245 (3d Cir. 2013) (citation omitted). A court must grant pro se litigants leave to file a curative amended complaint even when a plaintiff does not seekleave to amend, unless such an amendment would be inequitable or futile. See Estate of Lagano v. Bergen Cnty. Prosecutor's Office, 769 F.3d 850, 861 (3d Cir. 2014).
Mr. Banks names the following Pennsylvania Department of Corrections (DOC) Central Office employees as Defendants in his Complaint: Tracy Smith, Director of Bureau of Treatment Services; Michael Wenerowicz, Eastern Regional Deputy; and John Wetzel, Secretary. Plaintiff also names the following SCI-Benner employees as Defendants: Superintendent Robert Marsh and Chaplain Matthew McCoy. All Defendants are named in their individual capacities, only Regional Deputy Wenerowicz is named in his official capacity. (ECF No. 1.)
Mr. Banks, a Native American, alleges that on September 19, 2018, Director Smith and Regional Deputy Wenerowicz denied his religious accommodation request for a sweat lodge. The DOC does not allow sweat lodges "for compelling governmental interests of safety, security and fiscal responsibility." (Id. at 5 and 21.) Mr. Smith and a non-defendant advised Mr. Banks that he "may choose to seek other means of purification available to inmates by participating in smudging and prayer." (Id.) Secretary Wetzel, Superintendent Marsh and Chaplain McCoy "were informed of [this] violation but did nothing." (Id. at 4.)
Mr. Banks also claims that "the P.A. state prisons [are] violating Native American rights and purposefully because they refused to answer survey sent out in 1992 their negligence and discrimination has lead to our religious intrusion." (Id. at 4.) Hereferences the summary portion of the Native American Rights Fund's 1992 survey of state and federal correctional facilities concerning policies and practices afforded Native American inmates. (Id. at 7.) Plaintiff argues that the DOC's failure to respond to the survey demonstrates its history of violating the rights of Native American inmates "for 27 years". (Id. at 7.) Mr. Banks attaches a document entitled "Attorney General Directive" "to protect the free exercise and related equal protection rights of Native American prisoners" which was drafted by the National Native American Prisoner Rights Advocates' Coalition (NNAPRAC) in 1995. (Id. at 8 - 10.)1 Based on the Defendants non-compliance with this document, Mr. Banks alleges they are violating his First and Fourteenth Amendment rights.
Additionally, Mr. Banks argues that Native American inmates "aren't being afforded equal treatment as the popular religions". (Id.) Native American inmates "are not being rehabilitated according to [their] nations and societies," and may not wear traditional hairstyles. (Id.)
Mr. Banks resides in a mental health treatment unit at SCI-Benner and suffers from depression. He takes medication and sees a psychologist. He suffers from increased depression because the DOC does not permit him to practice his religion "in [his] way." (Id.) He uses art therapy to cope with the stress.
As relief for the violation of his First and Fourteenth Amendment rights, Mr. Banks seek the Court to mandate the DOC provide sweat lodges for the NativeAmerican population, "full religious freedom and equal protections," monetary damages and "apology letters to himself and the Native communities in other prison[s]." (Id.)
On April 11, 2019, Mr. Banks filed a "Supplemental Complaint" naming the following SCI-Benner employees as Defendants: Lt. Stavolla; Corrections Officer (CO) Gass and CO Musslemen. He claims these individuals violated his religious rights and have retaliated against him for his filing of this lawsuit. (ECF No. 10.)
On April 2, 2019, Lt. Stavolla ordered an investigative search of Mr. Banks' cell. The last such search occurred in mid-March. CO Gass and CO Musslemen entered Plaintiff's cell, required both he and his cellmate (who is also Native American) to submit to a strip search. Both inmates advised the officers that their cell contained "sacred religious items and relics". (Id. at 1.) Mr. Banks' cell contained native feathers, sage, and prayer alters. Medicine bags "made from altered state boots" that officers let Plaintiff keep were also in the cell. (Id. at 2.) GP Gass and CO Musslemen began destroying the cell and were in search of "altered religious items." (Id.) In the process of dismantling and confiscating the prayer alters, the officers destroyed them. Mr. Banks' sacred headbands were confiscated while those belonging to his cellmate were not. (Id.) Mr. Banks' argues that the confiscation was in retaliation for his filing of grievances and his present lawsuit. He seeks the return of all religious items (altered pipe; altered rugs; altered pain brush; altered pants; altered wire; 2 loose razor blades; 1 altered pair of boots; altered sheet; altered magazine/paperwork; headband made from state boot; altered state blanket and sheet; altered state coat liner; altered knit hat;dining hall plate; altered laundry loops; and a choker necklace)...
To continue reading
Request your trial