Banks v. U.S. Marshals Serv.
| Decision Date | 24 February 2016 |
| Docket Number | Civil Action No. 15-127 |
| Parties | FREDERICK BANKS, Plaintiff, v. UNITED STATES MARSHALS SERVICE, et al., Defendants. |
| Court | U.S. District Court — Western District of Pennsylvania |
It is respectfully recommended that the Motion to Dismiss Complaint and to Strike Defendant Allegheny County Jail from Caption (ECF No. 22), filed by Defendants Allegheny County and Rich Fitzgerald, be granted, and the Allegheny County Jail be stricken from the caption and the Complaint be dismissed with prejudice as to Defendants County of Allegheny and Rich Fitzgerald.
On or about November 17, 2014, Plaintiff Frederick Banks ("Banks"), proceeding pro se, filed this action in the Court of Common Pleas of Allegheny County, Pennsylvania, at Case No. GD-14-021024. Plaintiff describes himself as an American Indian and member of the Lakota Sioux Tribe and a Tribal Official of the United Tribes of America. Compl., Intro. (ECF No. 1-2 at 3). In addition, Plaintiff states he is a second degree wicca, warlock high priest, and witchcraft practitioner. Id.
Named as defendants in this action are Orlando Harper, Warden, Allegheny County Jail; Rich Fitzgerald, County Executive; County of Allegheny; Case Manager Schenk; Unit Manager 40, Cyndy McSwiggin, Supervisor; and the Allegheny County Jail ("ACJ").1 Defendants Orlando Harper, Case Manager Schenk, and Unit Manager 40 McSwiggin have been dismissed from this case by Order of Court (ECF No. 33) dated February 11, 2016, based on Plaintiff's failure to effectuate and/or file proper proof of service pursuant to Rules 4(l) and (m). Thus, the only Defendants remaining in this action are Rich Fitzgerald, the County of Allegheny (the "County" or "Allegheny County"), and the ACJ (collectively, the "County Defendants"). Plaintiff is suing Rich Fitzgerald in his official and individual capacities.
Plaintiff's claims against the County Defendants and allegations in support are summarized as follows.
On September 30, 2014, Plaintiff alleges that he was transferred to the ACJ by the Director of the United States Marshal Service ("USMS"). Compl. at ¶1. Plaintiff further alleges that he was held beyond his prison sentence expiration date of October 20, 2014in violation of the Fifth and Eighth Amendments. 2 Id. Plaintiff further alleges that "Defendants acted with deliberate indifference because the warden, USMS and case manager failed to correct this." Id.
In October 2014, Plaintiff contends that while incarcerated at ACJ, (1) Case Manager Schenk denied him access to the courts by preventing him from placing legal calls and by failing to have his legal and personal mail from NEOCC forwarded to ACJ; (2) the cashier failed to provide him with an indigent pack containing a pen and six first class envelopes as required by the inmate handbook; (3) the prison chaplain failed to procure various wiccan tools and a wiccan bible, and "Defendants" failed to provide a "volunteer wiccan chaplain", all of which prevented him from practicing his religion; and (4) that personal hygiene products/services were either inadequate (one unsanitized electric razor was shared by 120 inmates) or unavailable (a haircut and a new working shower). Compl. at ¶¶3-8. As a result of the conduct set forth in clauses (1) and (2) above, Plaintiff contends that the County Defendants violated his rights under the Equal Protection (class of one) and Due Process clauses of the Fifth, and Fourteenth Amendments, the right to association under the First Amendment, and obstructed his access to the courts by preventing him from litigating his civil actionspending in Allegheny County Court of Common Pleas and federal court, and in defending himself in federal court criminal cases, all in violation of the First Amendment Retaliation Clause, Right to Petition the Government for Redress of Grievances, Fifth and Fourteenth Amendments. Id. at ¶¶ 3, 8-9. As to the conduct alleged in clause (3) above, Plaintiff asserts that the County Defendants violated the Free Exercise and Establishment Clauses of the First Amendment, the Fourteenth Amendment, as well as the Religious Freedom Restoration Act ("RFRA"), 42 U.S.C. §§ 2000bb-2000bb-4, and the Religious Land Use and Institutionalized Persons Act ("RLUIPA"), 42 U.S.C. §§ 2000cc-2000cc-5. Compl. at ¶¶ 6-7. As a result of the conduct alleged in clause (4) above, Plaintiff contends that the County Defendants violated the Eighth Amendment. Id. at ¶ 5. Plaintiff claims to have exhausted all administrative remedies with regard to his complaints about the conditions of his confinement at ACJ. Compl. at ¶2.
For relief, Plaintiff seeks money damages in the amount of $10 million for each violation, totaling $60 million, as well as punitive damages in the total amount of $180 million, plus costs, interest and fees. Compl. at ¶11. Plaintiff also requests declaratory relief ending the alleged violations. Id.3
On January 30, 2015, the United States of America removed this action to federal court pursuant to 28 U.S.C. §§ 1442 and 1446. After several orders directing Plaintiff to effectuate service on the County Defendants and file proper proof of same, see ECF Nos. 13, 14, and 26, Plaintiff filed the executed waiver of service of summons returned by the County of Allegheny on October 16, 2015 (ECF No. 19).4 However, Plaintiff failed to demonstrate proper proof of service on Defendants Fitzgerald, Harper, Schenk, and McSwiggin after several extensions and, consequently, the Court dismissed Defendants Harper, Schenk and McSwiggin from the Complaint without prejudice on February 11, 2016 (ECF No. 33).5
On November 16, 2015, the County of Allegheny and Rich Fitzgerald filed a motion to dismiss the Complaint against them, and to strike Defendant ACJ from Caption (ECF No. 22). In response, Plaintiff filed a timely Reply in Opposition to theMotion to Dismiss (ECF No. 25), to which Defendants filed a Reply (ECF No. 27). Thus, the motions are ripe for disposition.
The County of Allegheny and Rich Fitzgerald have moved to dismiss the Complaint against them pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Rule 8(a)(2) of the Federal Rules of Civil Procedure provides that pleadings and, in particular, pro se complaints, are to be liberally construed. Abdul-Akbar v. McKelvie, 239 F.3d 307, 322 (3d Cir. 2001)); Dluhos v. Strasberg, 321 F.3d 365, 369 (3d Cir. 2003) (citing Higgins v. Beyer, 293 F.3d 683, 688 (3d Cir. 2002) (). Indeed, a pro se complaint "'however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.'" Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)); Haines v. Kerner, 404 U.S. 519, 520 (1972).
In a § 1983 action, the court must liberally construe the pro se litigant's pleadings and "apply the applicable law, irrespective of whether a pro se litigant has mentioned it by name." Higgins, 293 F.3d at 688 (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) . However, there are limitsto the court's procedural flexibility—"pro se litigants still must allege sufficient facts in their complaints to support a claim. . . they cannot flout procedural rules—they must abide by the same rules that apply to all other litigants." Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 245 (3d Cir. 2013) (citations omitted).
A motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure tests the legal sufficiency of a complaint. Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993). 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 (2007) (); Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly). "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." Iqbal, 556 U.S. at 678 (citing Twombly at 556). The Supreme Court further explained:
The plausibility standard is not akin to a "probability requirement," but it asks for more than a sheer possibility that a defendant has acted unlawfully. Where a complaint pleads facts that are "merely consistent with" a defendant's liability, it "stops short of the line between possibility and plausibility of 'entitlement to relief.'"
Id. (citing Twombly at 556-57). The court of appeals has expounded on this standard in light of its decision in Phillips v. County of Allegheny, 515 F.3d 224 (3d Cir. 2008) (), and the Supreme Court's recent decision in Iqbal:
After Iqbal, it is clear that conclusory or "bare-bones" allegations will no longer survive a motion to dismiss: "threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Iqbal, 129 S.Ct. at 1949. To prevent dismissal, all civil complaints must now set out "sufficient factual matter" to show that the claim is facially plausible. This then "allows the court to draw the reasonable inference that the defendant is...
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