Omar Sherieff Cash v. Wetzel
| Decision Date | 11 March 2016 |
| Docket Number | Civil Action No. 12-cv-05268 |
| Parties | OMAR SHERIEFF CASH, Plaintiff v. JOHN E. WETZEL, Secretary of Corrections; JEFFREY WITHERITE, Staff Assistant-Western Region; DORINDA VARNER, Chief Grievance Officer; MIKE WENEROWICZ, Facility Manager SCI Graterford; WENDY SHAYLOR, Grievance Coordinator; VEROSKY, Lieutenant; LEWIS, Correctional Officer; KRYESKI, Correctional Officer; AGUIAR, Correctional Officer T.J. DOHMAN, Deputy Superintendent; J.W. SPAGNOLETTI, Captain; JOSEPH TERRA, Unit Manager; BENDER, Lieutenant; COX, Lieutenant; EVERDING, Lieutenant; MOYER, Correctional Officer; FINA, Correctional Officer; CURRAN, Correctional Officer; RIVERA, Correctional officer; HALL, Correctional officer; and MELISSA SMITH, Defendants |
| Court | U.S. District Court — Eastern District of Pennsylvania |
APPEARANCES:
OMAR SHERIEFF CASH
Pro Se
KATHY LE, Deputy Attorney General
On behalf of Defendants
OPINIONThis matter is before the court on the Consolidated Amended and Supplemental Complaint filed by plaintiff Omar Sherieff Cash pro se on March 18, 20152 and defendants' Motion to Dismiss the Third Amended Complaint ("Motion to Dismiss"), which motion was filed November 18, 2015.3
By Order dated and filed November 3, 2015,4 I directed defendants to respond to the Consolidated Amended and Supplemental Complaint by November 17, 2015. Consequently, on November 18, 2015, defendants also filed a Motion for Extension of Time in Which to Respond to Plaintiff's Consolidated Amended and Supplemental Complaint ("Motion to Accept Late Filing").5
On November 16, 2015, plaintiff filed a Motion in Opposition to Defendant's [sic] Motion to Dismiss.6 On December 14, 2015, plaintiff filed an Amended Motion in Opposition to Defendant's Motion to Dismiss.7
I grant defendants' Motion to Accept Late Filing as unopposed. For the following reasons, I grant in part and deny in part defendants' Motion to Dismiss. I grant the Motion to Dismiss to the extent each defendant is sued in his official capacity. I further grant the Motion to Dismiss to the extent it seeks dismissal of Counts 1 through 5 and 7 through 9.8 I dismiss Count 6 with respect to defendants Kryeski, Correctional Officer; Patrick Curran; and Ephrain Rivera; but not defendants Thomas Dohman; Jeffrey Bender; Brian Moyer; Patrick Fina; or Isaiah Hall.
Jurisdiction is based upon federal question jurisdiction pursuant to 28 U.S.C. § 1331. Plaintiff brings claims under 42 U.S.C. § 1983 for violations of the First, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution.
Venue is proper pursuant to 28 U.S.C. § 1391(b) because the events giving rise to these claims occurred in Montgomery County, Pennsylvania, which is located in this judicial district. See 28 U.S.C. §§ 118, 1391(b).
On September 13, 2012, plaintiff filed an Application for In Forma Pauperis,9 which was denied by Order dated and filed September 17, 2012.10 On October 17, 2012 plaintiff filed an amended pro se Motion for Leave to Proceed In Forma Pauperis.11 By Order dated and filed October 22, 201212 I granted plaintiff's motion and directed the Clerk of Court to file plaintiff's Complaint. The Complaint was filed on October 22, 2012.13
On November 9, 2012 plaintiff filed a Motion for Leave to File an Amended Complaint.14 By Order dated December 20, 2012 and filed December 21, 201215 I granted plaintiff's motion as unopposed and ordered the Clerk of Court to file plaintiff's Amended Complaint and attached exhibits. The Amended Complaint was filed on December 21, 2012.16
On January 4, 2013 defendants filed Commonwealth Defendants' Motion to Dismiss the Amended Complaint.17 On January 14, 2013, plaintiff filed a Motion for Leave to File an Amended Complaint.18 By Order dated and filed July 22, 2013,19 I granted plaintiff's Motion for Leave to File an Amended Complaint and dismissed as moot Commonwealth Defendants' Motion to Dismiss the Amended Complaint. Accordingly, on July 22, 2013, the Clerk of Court filed plaintiff's second Amended Complaint.20
On August 12, 2013, plaintiff filed a Supplemental Complaint Notice,21 requesting leave of court to file a Supplemental Complaint. On August 23, 2013, defendants filed Commonwealth Defendants' Motion to Dismiss the Second Amended Complaint,22 with respect to the second Amended Complaint filed on July 22, 2013.
By Opinion and Order dated March 26, 2014,23 I granted plaintiff's request to file a Supplemental Complaint. I also granted in part and denied in part Commonwealth Defendants' Motion to Dismiss the Second Amended Complaint. Specifically, I dismissed Counts 7, 9, 14, 15, and 18 of the second Amended Complaint and dismissed Count 17 against defendants Mike Wenerowicz, Facilities Manager, SCI Graterford; John Spagnoletti; Joseph Terra; Jeffrey Bender; and John Everding. On March 26, 2014, in accordance with the Opinion and Order, the Clerk of Court filed plaintiff's Supplemental Complaint.24
On April 21, 2014, defendants filed Commonwealth Defendants' Answer and Affirmative Defenses to the Second Amended Complaint and Supplemental Complaint.25
On November 12, 2014 plaintiff filed a third Amended Complaint.26 By Rule 16 Status Conference Order dated November 17, 2014 and filed November 26, 2014,27 plaintiff's third Amended Complaint was stricken and he was given twenty-one days to file a motion for leave to file his third Amended Complaint. Accordingly, on December 8, 2014, plaintiff filed a Motion for Leave to File a Consolidated Amended and Supplemental Complaint,28 which motion was granted by Order dated March 17, 2015 and filed March 18, 2015.29
On March 18, 2015, the Clerk of Court filed plaintiff's Consolidated Amended and Supplemental Complaint, which is now before the court.30 On November 18, 2015, defendants filed their within Motion to Dismiss.31
A claim may be dismissed under Federal Rule of Civil Procedure 12(b)(6) for "failure to state a claim upon which relief can be granted." A Rule 12(b)(6) motion requires the court to examine the sufficiency of the complaint. Conley v. Gibson, 355 U.S. 41, 45, 78 S.Ct. 99, 102, 2 L.Ed.2d 80, 84 (1957) (abrogated in other respects by Bell Atlantic Corporation v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). Generally, in ruling on a motion to dismiss, the court relies on the complaint, exhibits attached to the complaint, and matters of public record, including other judicial proceedings. Sands v. McCormick, 502 F.3d 263, 268 (3d Cir. 2008).
Except as provided in Federal Rule of Civil Procedure 9, a complaint is sufficient if it complies with Rule 8(a)(2), which requires "a short and plain statement of the claim showing that the pleader is entitled to relief". Rule 8(a)(2) does not require heightened fact pleading of specifics, but only enough facts to state a claim to relief that is plausible on its face. Twombly, 550 U.S. at 570, 127 S.Ct. at 1974, 167 L.Ed.2d at 949.32
In determining whether a complaint is sufficient, the court must accept all factual allegations as true, construe the complaint in the light most favorable to plaintiff, and determine whether, under any reasonable reading, plaintiff may be entitled to relief. Fowler, 578 F.3d at 210 (citing Phillips v. County of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008)).
Although "conclusory" or "bare-bones allegations" will not survive a motion to dismiss, Fowler, 578 F.3d at 210, a complaint may not be dismissed merely because it appears unlikely that the plaintiff can prove those facts or will ultimately prevail on the merits. Phillips, 515 F.3d at 231. Nonetheless, to survive a Rule 12(b)(6) motion, the complaint must provide "enough facts to raise a reasonable expectation that discovery will reveal evidence of the necessary element." Id. at 234 (quoting Twombly, 550 U.S. at 556, 127 S.Ct. at 1965, 167 L.Ed.2d at 940) (internal quotations omitted).
The court is required to conduct a two-part analysis when considering a Rule 12(b)(6) motion. First, the factual matters averred in the complaint, and any attached exhibits, should be separated from legal conclusions asserted. Fowler, 578 F.3d at 210. Any facts pled must be taken as true, and any legal conclusions asserted may be disregarded. Id. at 210-211.
Second, the court must determine whether those factual matters averred are sufficient to show that the plaintiff has a "plausible claim for relief." Id. at 211 (quoting Iqbal, 556 U.S. at 679, 129 S.Ct. at 1950, 178 L.Ed.2d at 884).
Ultimately, this two-part analysis is "context-specific" and requires the court to draw on "its judicial experience and common sense" to determine if the facts pled in the complaint have "nudged [plaintiff's] claims" over the line from "[merely] conceivable [or possible] to plausible." Iqbal, 556 U.S. at 679-680, 129 S.Ct. at 1949-1951, 178 L.Ed.2d at 884-885.
A well-pled complaint may not be dismissed simply because "it strikes a savvy judge that actual proof of those facts is improbable, and that a recovery is very remote and unlikely." Twombly, 550 U.S. at 556, 127 S.Ct. at 1965, 167 L.Ed.2d at 940-941 (internal quotations omitted).
Based upon the averments in plaintiff's Consolidated Amended and Supplemental Complaint, which I must accept as true under the applicable standard of review discussed above, the pertinent facts are as follows.
Plaintiff is a prisoner in the custody of the Pennsylvania Department of Corrections.33 Defendants are all employed by the Pennsylvania Department of Corrections.34
On May 26, 2011, plaintiff was temporarily transferred from the State Correctional Institution at Albion, Pennsylvania ("SCI Albion") to the State Correctional Institution at Graterford, Pennsylvania ("SCI Graterford") to appear at a pre-trial hearing for a capital offense case in Philadelphia County, Pennsylvania.35 Plaintiff had previously been convicted of a separate offense in Bucks County,...
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