Flanagan v. Shively

• Decision Date: 16 January 1992
• Docket Number: No. CV-90-0143.,CV-90-0143.
• Citation: 783 F. Supp. 922
• Parties: John W. FLANAGAN, Plaintiff, v. William C. SHIVELY, et al., Defendants.
• Court: U.S. District Court — Middle District of Pennsylvania

783 F. Supp. 922

John W. FLANAGAN, Plaintiff, v. William C. SHIVELY, et al., Defendants.

No. CV-90-0143.

United States District Court, M.D. Pennsylvania.

January 16, 1992.

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John W. Flanagan, pro se.

Robert J. DeSousa, Asst. U.S. Atty., Chief, Civil Div., Lewisburg, Pa., Kim D. Daniel, Asst. U.S. Atty., Harrisburg, Pa., for defendants.

MEMORANDUM

McCLURE, District Judge.

BACKGROUND

Plaintiff John W. Flanagan filed this Bivens¹ type civil rights action against twenty-three persons, all of whom are employed by the United States Bureau of Prisons, in various capacities, and in various locations across the country.² Plaintiff is currently incarcerated at the United States Penitentiary at Lewisburg, Pennsylvania, ("USP-Lewisburg"), and alleges that the named defendants have conspired to deprive him of his First, Fifth, Sixth, Eighth and Fourteenth Amendment rights.

Plaintiff alleges that this conspiracy began on December 2, 1987 while he was incarcerated at the Federal Correctional Institution in Bastrop, Texas ("FCI-Bastrop") and continued through the filing of this action. In his original and amended complaints,³ he recounts various incidents which he alleges establish a concerted effort on defendants' part to deprive him of his constitutional rights. He alleges, inter alia, that defendants wrongly determined that he was participating in a plot to escape from prison, denied him access to various Bureau of Prisons' ("BOP") forms, improperly housed him in disciplinary and administrative segregation, falsified BOP forms, used improper BOP forms, conducted disciplinary proceedings against him in an unlawful manner, prevented him from appearing in a television documentary, denied him administrative appeals, denied him access to the courts, improperly suspended his visitation rights, denied him the right to call witnesses in disciplinary proceedings, denied him necessary medical care and confined him in unconstitutionally-substandard housing. Plaintiff further alleges that defendants conspired to prevent him from being returned to USP-Leavenworth so as to deny him access to the United States District Court for the District of Kansas, where he had a case pending. For these alleged violations, plaintiff seeks compensatory and punitive damages. (Plaintiff's complaint, filed January 23, 1990 and amended complaint (Record Document No. 33), filed April 12, 1991).

Defendants have moved for dismissal of plaintiffs' amended complaint under Fed. R.Civ. 12(b) on grounds of: (1) improper venue; (2) failure to state a cause of action; (3) lack of personal jurisdiction over the defendants; and (4) qualified immunity of the defendants. (Record Document No. 42, filed August 9, 1991). We will enter an order granting defendants' motion to dismiss for failure to state a cause of action. Plaintiff will not be granted further leave to amend. Our ruling on the motion to dismiss renders the other outstanding motions moot, with the exception of plaintiff's motion (Record Document No. 70, filed December 18, 1991) for sanctions pursuant to Fed.R.Civ.P. 11 and defendants' counter-motion⁴ (Record Document No. 72, filed December 30, 1991) for Rule 11 sanctions. We will deny plaintiff's motion for sanctions and grant defendants' motion.

DISCUSSION

Motion to dismiss for failure to state a cause of action

The standards for ruling on a Rule 12(b)(6) motion are well-established. A complaint may not be dismissed for failure to state a claim upon which relief can be granted unless "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which could entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957). The court must accept all material allegations in the complaint as true and construe them in the light most favorable to the party opposing the motion. Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974); Johnsrud v. Carter, 620 F.2d 29 (3d Cir.1980); and Truhe v. Rupell, 641 F.Supp. 57, 58 (M.D.Pa.1985) (Rambo, J.). Although the complaint is to be liberally construed in favor of the plaintiff (See: Fed.R.Civ. 8(f)), the court does not have to accept every allegation it contains as true. Conclusory allegations of law, unsupported conclusions and unwarranted inferences need not be accepted as true. Conley, supra, 355 U.S. at 45-46, 78 S.Ct. at 101-102.

In an action asserting civil rights violations, factual allegations must be pled with specificity.⁵ Vague and conclusory allegations fail to state a cause of action. Colburn v. Upper Darby Township, 838 F.2d 663, 666 (3d Cir.1988), cert. denied, 489 U.S. 1065, 109 S.Ct. 1338, 103 L.Ed.2d 808 (1989) and Rotolo v. Borough of Charleroi, 532 F.2d 920, 923 (3d Cir.1976). The complaint must contain a "modicum of factual specificity, identifying the particular conduct of defendants that is alleged to have harmed the plaintiffs." "The crucial questions are whether sufficient facts are pleaded to determine that the complaint is not frivolous, and to provide defendants with adequate notice to frame an answer." Colburn, supra, 838 F.2d at 666, citing Frazier v. Southeastern Pennsylvania Transportation Authority, 785 F.2d 65, 67 (3d Cir.1986). This heightened specificity requirement serves a dual purpose by protecting government officials from frivolous claims and providing officials with sufficient notice of claims asserted against them so that they may raise all applicable defenses.

To conform to this requirement, plaintiff's complaint must allege the specific conduct complained of, where and when that conduct took place, the identity of the responsible parties, and the constitutional rights being asserted. Colburn, supra, 838 F.2d at 666. Whether plaintiff has met this standard is determined on a case-by-case basis. Freedman v. City of Allentown, 853 F.2d 1111, 1114 (3d Cir.1988). Pleading conclusory allegations that, for example, the defendants acted willfully, intentionally and deliberately or with reckless disregard of plaintiff's rights does not suffice. The court must look at the "factual scenario itself to examine whether the conduct alleged, viewed most favorably to plaintiffs, is reasonably susceptible to falling within the conclusions alleged." Freedman, supra, 853 F.2d at 1114-15.

A plaintiff is not, however, required to provide either proof of his claims or a "proffer of all available evidence" because in civil rights cases, "much of the evidence can be developed only through discovery" of materials held by defendant officials. Frazier, 785 F.2d at 68.⁶

Stringent pleading requirements also apply to allegations of conspiracy. The plaintiff's allegations must be supported by facts bearing out the existence of the conspiracy and indicating its broad objectives and the role each defendant allegedly played in carrying out those objectives. Bare conclusory allegations of "conspiracy" or "concerted action" will not suffice to allege a conspiracy. The plaintiff must expressly allege an agreement or make averments of communication, consultation, cooperation, or command from which such an agreement can be inferred. In Waller v. Butkovich, 584 F.Supp. 909, 931 (D.C.N.C.1984), the district court outlined the pleading requirements in a conspiracy action.

The Court is also satisfied that no heightened pleading requirements come into play simply because the complaint charges a conspiracy. However, the Conley v. Gibson requirement that the defendant be given `fair notice of what the plaintiff's claim is and the grounds on which it rests' may take on special import when a conspiracy is alleged.

In most cases, a bare conclusory allegation of `conspiracy' or `concerted action' will not suffice. The plaintiffs must expressly allege an agreement or make averments of `communication, consultation, cooperation, or command' from which such an agreement can be inferred.... (Citation omitted.) ... Allegations that the defendants' actions combined to injure the plaintiffs are not a sufficient basis from which to imply a conspiracy ... (Citation omitted.)

Additionally, the plaintiffs must make `specific factual allegations connecting the defendant to the injury' ... (Citations omitted.) ... On the other hand, an overt act need not be pleaded against each defendant, because a single overt act by just one of the conspirators is enough to sustain a conspiracy claim even on the merits ... (Citation omitted.) ... Nor are the plaintiffs required to allege exactly how the agreement was made — i.e. they need not allege exactly where and when, and with what words, the agreement was formed ... (Citations omitted.) ... conspiracies are by their very nature secretive, and the victims thereof are unlikely to have access to such facts before bringing suit ... (Citation omitted.) ... All that can be required at the pleading stage is that a defendant be given notice of how he is alleged to have participated in the conspiracy, so that he may intelligently prepare his answer and defense.

A complaint cannot survive a motion to dismiss if it contains only conclusory allegations of conspiracy, but does not support those allegations with averments of the underlying material facts. Schneider v. Colegio de Abogados de Puerto Rico, 546 F.Supp. 1251 (D.C. Puerto Rico 1982). See also: Chodos v. Federal Bureau of Investigation, 559 F.Supp. 69 (D.C.N.Y. 1982), cert. denied, 459 U.S. 1111, 103 S.Ct. 741, 74 L.Ed.2d 962.

Bivens

Under Bivens, a plaintiff may recover for violations of federal constitutional rights by federal employees or officials. Conduct which does not rise to the level of a constitutional violation is not actionable. Bivens, supra, 403 U.S. at 395, 91 S.Ct. at 2004.

Disciplinary hearing

In an incident report⁷ filed December 28, 1987 and signed by defendant Fleming, plaintiff was charged with plotting to escape from FCI-Bastrop. Attempted escape...