Horan v. Wetzel, CIVIL ACTION NO. 1:13-CV-00140

• Decision Date: 16 January 2015
• Docket Number: CIVIL ACTION NO. 1:13-CV-00140
• Parties: PATRICK HORAN, Plaintiff, v. JOHN WETZEL, et al., Defendants.
• Court: U.S. District Court — Middle District of Pennsylvania

PATRICK HORAN, Plaintiff, v. JOHN WETZEL, et al., Defendants.

CIVIL ACTION NO. 1:13-CV-00140

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF PENNSYLVANIA

January 16, 2015

(CALDWELL, J.)

(MEHALCHICK, M.J.)

REPORT AND RECOMMENDATION

This is a pro se action for damages, injunctive, and declaratory relief pursuant to 28 U.S.C. § 1983. Pending before this Court is Plaintiff's motion for a preliminary injunction and temporary restraining order (Doc. 88), and Defendants' motion to dismiss. (Doc. 54). For the reasons stated herein, it is recommended that Plaintiff's motion be denied (Doc. 88), and Defendants' motion be granted in part, and denied in part (Doc. 54).

I. BACKGROUND

Plaintiff Patrick Horan, proceeding pro se, filed the original complaint in this matter on January 22, 2013, asserting claims for damages against twenty-four (24) defendants pursuant to 28 U.S.C. § 1983. (Doc. 1). Horan's claims arise from an incident that took place on October 9, 2010, while incarcerated at the State Correctional Institution at Frackville ("SCI-Frackville"), whereby fellow inmate, Wayne Liddick, was allegedly harassed and injured by two Department of Corrections Officials--Defendants Eidem and Hardy. (Doc. 1). Horan alleges that he was retaliated against as a result of filing grievances on behalf of Wayne Liddick in response to the October 9, 2010 incident. (Doc. 1). Specifically, Horan alleges that he was subjected to retaliatory harassment in the form of filing false misconduct reports, tampering with his mail, transferring him to a different institution, and referring to him as a "child molester" in thepresence of other inmates. Moreover, he claims that he was sexually harassed and placed at risk of assault for being labeled a "child molester" in violation of the Eighth Amendment.

Defendants filed a motion to dismiss Horan's complaint on April 1, 2013 (Doc. 11). In an Order dated February 18, 2014, the Court granted Defendants' motion in part and denied it in part. (Doc. 47). Moreover, the Court granted Horan leave to amend his complaint with respect to his First Amendment retaliation claim against Defendants Collins, Dorzinsky, and Mirarchi for mail tampering and his claims against Defendant O'Day for retaliation or sexual harassment. Consequently, Horan filed an amended complaint, together with a brief in support of his amended complaint, which addressed the mail tampering claim against Defendants Collins, Dorzinsky, and Mirarchi, and his claims against Defendant O'Day.

Per the Court's February 18, 2014 Order, the remaining claims in this action are as follows: (1) a First Amendment retaliation claim against Defendant Serginski, Suzadail, Hardy, Covington, and Warford for filing a false misconduct report; (2) a First Amendment retaliation claim against Defendants Collins and Cameron for transferring Horan to SCI-Cresson; (3) a First Amendment claim and an Eighth Amendment claim against Defendants Eidem, Mirarchi, Hardy, Suzdail, and Gaile for referring to him as a "child molester" in the presence of other inmates; (4) an Eighth Amendment claim against Defendants Covington and O'Day for sexual harassment; (5) a First Amendment retaliation claim against Defendants Collins, Dorzinsky, and Mirarchi for mail tampering; (6) a Sixth Amendment claim and an Eighth Amendment claim against Defendants Cameron, Bearjar and Casner for labeling him "Unassigned- Refusing Program," placing him at risk of assault; and (7) conspiracy claims pursuant to 42 U.S.C.§ 1985(2) and 42 U.S.C § 1986.¹

Currently pending before this Court is Defendants' motion to dismiss Horan's amended complaint. (Doc. 54). Plaintiff has also filed the instant motion for a preliminary injunction and temporary restraining order, seeking an order directing staff at SCI-Graterford, where he was temporarily transferred for a PCRA hearing at the Northampton County Court of Common Pleas, to return Horan's various legal materials and personal items; namely his "record box full of legal property." (Doc. 88).

Having been fully briefed, these motions are now ripe for disposition.

II. MOTION TO DISMISS STANDARD

Rule 12(b)(6) of the Federal Rules of Civil Procedure authorizes a defendant to move to dismiss for "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). The United States Court of Appeals for the Third Circuit has noted the evolving standards governing pleading practice in federal court, stating that:

Standards of pleading have been in the forefront of jurisprudence in recent years. Beginning with the Supreme Court's opinion in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), continuing with our opinion in Phillips [v. County of Allegheny, 515 F.3d 224 (3d Cir. 2008)] and culminating recently with the Supreme Court's decision in Ashcroft v. Iqbal, 556 U.S. 662 (2009), pleading standards have seemingly shifted from simple notice pleading to a more heightened form of pleading, requiring a plaintiff to plead more than the possibility of relief to survive a motion to dismiss.

Fowler v. UPMC Shadyside, 578 F.3d 203, 209-10 (3d Cir. 2009).

In considering whether a complaint fails to state a claim upon which relief may be granted, the court must accept as true all allegations in the complaint and all reasonableinferences that can be drawn therefrom are to be construed in the light most favorable to the plaintiff. Jordan v. Fox, Rothschild, O'Brien & Frankel, 20 F.3d 1250, 1261 (3d Cir. 1994). However, a court "need not credit a complaint's 'bald assertions' or 'legal conclusions' when deciding a motion to dismiss." Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997). Additionally, a court need not assume that a plaintiff can prove facts that the plaintiff has not alleged. Associated Gen. Contractors of Cal. v. California State Council of Carpenters, 459 U.S. 519, 526 (1983). As the Supreme Court held in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), in order to state a valid cause of action a plaintiff must provide some factual grounds for relief which "requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555. "Factual allegations must be enough to raise a right to relief above the speculative level." Twombly, 550 U.S. at 555. In keeping with the principles of Twombly, the Supreme Court has underscored that a trial court must assess whether a complaint states facts upon which relief can be granted when ruling on a motion to dismiss. In Ashcroft v. Iqbal, 556 U.S. 662 (2009), the Supreme Court held that, when considering a motion to dismiss, a court should "begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth." Iqbal, 556 U.S. at 679. According to the Supreme Court, "[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. In deciding a Rule 12(b)(6) motion, the Court may consider the facts alleged on the face of the complaint, as well as "documents incorporated into the complaint by reference, and matters of which a court may take judicial notice." Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007).

Additionally, a document filed pro se is "to be liberally construed." Estelle v. Gamble, 429U.S. 97, 106 (1976). A pro se complaint, "however inartfully pleaded," must be held to "less stringent standards than formal pleadings drafted by lawyers" and can only be dismissed for failure to state a claim if it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Haines v. Kerner, 404 U.S. 519, 520-21 (1972).

III.DISCUSSION

A. DISMISSED CLAIMS

In an order dated February 18, 2014, the District Court adopted this Court's Report and Recommendation in part and dismissed the following claims with prejudice:

1. Plaintiff's claims against all Defendant's in their official capacities;

2. Plaintiff's conspiracy claims under 42 U.S.C. 1983;

3. Plaintiff's claims against Defendants Moore-Smeal, Kovalchik Rosato, Dorzinsky, Varner, Wetzel, Barnacle, Collins, Cameron, Clark, Miranda, Bearjar, Mirarchi, and Day for failure to take disciplinary action or otherwise investigate Plaintiff's claims against the other Defendants;

4. Plaintiff's claims against Luquis, Collins, MacIntyre and Kovalchik for violation of his rights to procedural due process and access to the courts;

5. Plaintiff's First Amendment retaliation claim against Defendant Wetzel related to his transfer to SCI-Cresson;

6. Plaintiff's claims against Defendants Eidem, Hardy, Mirarchi, and Suzadail on behalf of Wayne Liddick and David Chacko;

7. Plaintiff's claims against Defendants Wetzel, Varner, Collins, Cameron, Bearjar, and Casner for denial of access to the courts based on his alleged inability to correspond with Wayne Liddick and David Chacko; and

8. Plaintiff's claims against Defendant Collins and Dorzinsky for mail tampering.

(Doc. 47).

The District Court also granted Horan leave to file an amended complaint for the limited purpose of fleshing out his claim against Defendants Collins, Dorzinsky and Mirarchi for mailtampering, and his claims against Defendant O'Day for sexual harassment and retaliation. (Doc. 47). On March 11, 2014, Horan filed an amended complaint (Doc. 49), together with a brief in support of the amended complaint. (Doc. 54). However, Horan's amended complaint retained and embellished on previously dismissed claims. Defendants filed a motion to strike the amended complaint on March 25, 2014 (Doc. 55), arguing that Horan's amended complaint exceeded the scope of the leave to amend, which this Court denied on the basis that the amended complaint did not affect the substance of the remaining claims against Defendants and moreover, did not prejudice Defendants. (Doc. 76).However, this Court noted that it would not consider the claims...