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