Opinion

TOLBERT v. PENNSYLVANIA DEPARTMENT OF CORRECTIONS

Court
District Court, E.D. Pennsylvania
Filed
Nov 30, 2022
Cited by
0 cases
Authority
More cited than 28.9%

The opinion

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF PENNSYLVANIA

_____________________________________

KEITH C. TOLBERT, :

Plaintiff, :

:

v. : No. 2:22-cv-01182

:

CORRECTIONAL OFFICER BALDWIN, :

DR. STEPHEN WEINER,1 and :

LT MORGAN, :

Defendants. :

_____________________________________

O P I N I O N

Defendants’ Motions to Dismiss, ECF Nos. 18, 20, and 29 – Dismissed as moot

Plaintiff’s Motion for Leave to File a Second Amended Complaint, ECF No. 53 - Granted

Joseph F. Leeson, Jr. November 30, 2022

United States District Judge

I. BACKGROUND

Plaintiff Keith C. Tolbert initiated this action pro se pursuant to 42 U.S.C. § 1983

alleging violations of his civil rights relating to an incident at SCI Phoenix in which he was

assaulted by other inmates. Pursuant to 28 U.S.C. § 1915(e)(2), this Court screened the

Complaint and entered a partial dismissal with leave to amend some claims. Tolbert filed an

Amended Complaint, which the remaining Defendants, two corrections officers and the medical

director at SCI Phoenix, have moved to dismiss. In response to the Motions to Dismiss, Tolbert

filed a Motion for Leave to File a Second Amended Complaint. His motion includes the

proposed Second Amended Complaint. For the reasons set forth below, leave to amend is

granted.

1 Dr. Weiner is now deceased. An Order will follow this Opinion substituting Dr.

Weiner’s wife, Nicola S. Wiener, as representative of the Estate of Dr. Stephen Weiner.

II. STANDARD OF REVIEW

Rule 15 of the Federal Rules of Civil Procedure states: “The court should freely give

leave when justice so requires.” Fed. R. Civ. P. 15(a)(2). The Third Circuit Court of Appeals

further provides that “where a defendant moves to dismiss a deficient complaint, the court should

grant leave to amend unless amendment would be inequitable or futile.” Grayson v. Mayview

State Hosp., 293 F.3d 103, 110 (3d Cir. 2002).

III. ANALYSIS

A. Eighth Amendment failure to protect claim against Baldwin.

In screening the Complaint, this Court concluded that Tolbert had pled sufficient facts,

accepted as true, to state a failure-to-protect claim against Baldwin. In the Amended Complaint,

which Tolbert filed with this Court’s permission to attempt to allege additional facts to support

his claims against other Defendants that had been dismissed without prejudice, Tolbert reasserted

his allegations against Baldwin.

Baldwin moves to dismiss the Amended Complaint, arguing that a video of the incident

clearly contradicts Tolbert’s allegations and, also, that Baldwin is entitled to qualified immunity.

In response, Tolbert filed a Motion for Leave to File a Second Amended Complaint, asserting

that “a Second Amended Complaint is necessary to fill in material gaps that are lacking in

Plaintiff’s first Amended Complaint.” See ECF No. 53 (containing Motion and Second

Amended Complaint).

Because at the time he filed the Amended Complaint, Tolbert was not required to amend

his allegations as to Baldwin, this would be Tolbert’s first opportunity to file an amended

complaint based on the alleged deficiencies asserted by Baldwin. Accordingly, Tolbert’s Motion

for Leave to File a Second Amended Complaint is granted.2

B. Eighth Amendment deliberate indifference claim against Doctor Weiner.

The Complaint asserted only an Equal Protection claim against Dr. Weiner for his alleged

failure to provide the same medical treatment to Tolbert as was provided to two corrections

officers that were injured during the incident. This claim was dismissed without prejudice.

Tolbert does not renew this claim in the Amended Complaint; instead, he alleges that Dr. Weiner

was deliberately indifferent to Tolbert’s medical needs.

In his Motion to Dismiss the Amended Complaint, Dr. Weiner argues that the allegations

are insufficient to establish deliberate indifference under the Eighth Amendment and that Tolbert

received the necessary medical care. Dr. Weiner further submits that because Tolbert previously

filed a complaint in state court containing the same allegations of deliberate indifference and

medical malpractice, which were dismissed, the claims are barred.

At the time the Amended Complaint was filed, Tolbert did not have the benefit of Dr.

Weiner’s arguments as to the alleged deficiencies in his deliberate indifference claims, nor this

Court’s review of his Eighth Amendment claim. Consequently, Tolbert’s Motion for Leave to

File a Second Amended Complaint is granted.3

C. First Amendment retaliation claim against Lieutenant Morgan.

Despite the fact that the claim against Morgan in the Complaint was dismissed with

prejudice, the Amended Complaint again named Morgan as a defendant and reasserted

allegations that Morgan filed false misconduct reports against Tolbert relating to the incident.

The Amended Complaint specified for the first time, however, that Tolbert was asserting a First

2 No opinion is offered at this time as to the sufficiency of the pleadings contained therein.

3 No opinion is offered at this time as to the sufficiency of the pleadings contained therein.

Amendment retaliation claim against Morgan. The original Complaint was silent as to the exact

constitutional claim and this Court construed Tolbert’s allegations as an attempt to set forth a

Fourteenth Amendment due process claim. It was on this construction of the claim that it was

dismissed with prejudice.

Morgan has moved to dismiss all claims against him in the Amended Complaint because

they were previously dismissed with prejudice. Recognizing that the Amended Complaint

clarified that the claim is brought under the First Amendment for retaliation, Morgan further

argues that if Tolbert is permitted to proceed under this theory the claim should nevertheless be

dismissed for failure to state sufficient facts.

Because the claim against Morgan was originally dismissed with prejudice after being

construed as alleging a due process violation, the retaliation claim will not be dismissed solely

because Tolbert did not have leave to amend his claim against Morgan. Furthermore, Tolbert did

not have the applicable law from this Court, nor Morgan’s arguments as to why his claim should

be dismissed when he filed the Amended Complaint. Tolbert’s Motion for Leave to File a

Second Amended Complaint is therefore granted.4

IV. CONCLUSION

Although Tolbert was previously afforded an opportunity to file an amended complaint,

leave was given after initial screening and this Court had construed some of his claims under

different constitutional theories. Defendants filed Motions to Dismiss the Amended Complaint,

which was the first time Tolbert had the benefit of their arguments and the law applicable to the

exact constitutional claims asserted. Accordingly, Tolbert’s Motion for Leave to File a Second

Amended Complaint is granted.

4 No opinion is offered at this time as to the sufficiency of the pleadings contained therein.

A separate order follows.

BY THE COURT:

/s/ Joseph F. Leeson, Jr._________

JOSEPH F. LEESON, JR.

United States District Judge

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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