Marrow v. Lawler

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

TRACY MARROW, :

Plaintiff :

: No. 1:19-cv-1690

v. :

: (Judge Rambo)

SUPERINTENDENT :

LAWLER, et al., :

Defendants :

MEMORANDUM

This matter is before the Court pursuant to the motion to dismiss (Doc. No.

39) filed by Defendants Mrs. Granuland (“Granlund”), Unit Manager Granuland

(“UM Granlund”), Superintendent Lawlor (“Lawlor”), Ms. Maharkel

(“Marhelko”),1 Rose A. McKinney (“McKinney”), Superintendent Brittain

(“Brittain”), and Mrs. Susan Wolfe (“Wolfe”). Pro se Plaintiff Tracy Marrow, who

is currently incarcerated at the State Correctional Institution in Frackville,

Pennsylvania (“SCI Frackville”), has filed neither a brief in opposition nor a motion

seeking an extension of time to do so. The motion to dismiss is, therefore, ripe for

disposition. For the following reasons, the Court will grant in part and deny in part

the motion to dismiss.

1 Defendants’ filings indicate that the proper spelling of these Defendants’ names is Granlund and

Marhelko, respectively. The Court, therefore, will direct the Clerk of Court to amend the docket

in the above-captioned action to reflect the proper spelling.

I. BACKGROUND

Plaintiff initiated the above-captioned action on October 1, 2019 by filing a

complaint pursuant to 42 U.S.C. § 1983 against Defendants and Defendant Kimberly

A. Barkley (“Barkley”).2 (Doc. No. 1.) The Court granted Plaintiff leave to file an

amended complaint (Doc. No. 21) on January 8, 2020 (Doc. No. 20). After receiving

two (2) extensions of time (Doc. Nos. 33, 34, 36, 37), Defendants Granlund, UM

Granlund, Lawler, Maharkel, McKinney, Brittain, and Wolfe filed their motion to

dismiss (Doc. No. 39) and brief in support (Doc. No. 40) on June 22, 2020.

Plaintiff is currently incarcerated under Department of Corrections (“DOC”)

number MV-5624. (Doc. No. 21 at 2.) He was previously incarcerated under DOC

numbers BG-4076 and DA-5439. (Id. at 4.) In his amended complaint, Plaintiff

alleges that Defendants McKinney and Granlund miscalculated his one sentence by

changing a four (4)-year sentence of suspended probation to be a sentence of one (1)

to four (4) years of incarceration. (Id. at 1.) Plaintiff maintains that the Pennsylvania

Board of Probation and Parole (“PBPP”) has illegally extended his maximum

sentence date under BG-4076 by seventeen (17) years. (Id.) Plaintiff asked

Defendant Wolfe about this issue, and she responded that “it was due to new

2 The summons issued to Defendant Barkley was returned to the Court on July 9, 2020. (Doc. No.

41.) Defendant Barkley was served on July 8, 2020; therefore, her response to Plaintiff’s amended

complaint is due on or before July 29, 2020.

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convictions.” (Id. at 2.) Plaintiff alleges that the maximum time he could have

received due to new convictions under BG-4076 was five (5), not seventeen (17),

years. (Id.) Plaintiff also faults Defendant Wolfe for not providing him with

sentencing status sheets from 1990 through 1998. (Id.) He submitted a grievance

asking for administrative review, and his grievance was denied. (Id.) Plaintiff

appealed the matter to Defendant Brittain, and she denied the appeal. (Id.) Plaintiff

also wrote to the PBPP and alleges that Defendant Barkley never responded to his

letter. (Id.)

Plaintiff suggests that previously, he was twice released while serving “hit

time” while asserting “res judicata and fraud claims.” (Id. at 4.) He maintains that

Defendants “were made aware of the miscalculation” and “never even attempted to

rectify the issue.” (Id. at 6.) At some point, Plaintiff was extradited to New Jersey

to serve a sentence there. (Id.) He alleges that when he was returned to

Pennsylvania, he was forced to serve an eighteen (18)-month parole violation

sentence for a second time. (Id.) He maintains further that while in New Jersey, his

sentence under BG-076 was “at a standstill for 22 months, when his time should

have continued to run via parole.” (Id.) Plaintiff also alleges that Defendants do not

have a valid sentencing order for the one (1) to four (4) year sentence mentioned

above and, therefore, have no authority to hold him for that sentence. (Id. at 8-9.)

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He asserts that the “illegal 17 [years]” he has served under BG-4076 should be

credited to his sentence under MV-5624. (Id. at 2.)

Based on the foregoing, Plaintiff alleges that Defendants have committed

deliberate indifference in violation of his Eighth Amendment rights. (Id. at 2-3, 7.)

He also asserts state law tort claims of fraud, negligence, false imprisonment, and

intentional infliction of emotional distress. (Id. at 2-4.) As relief, Plaintiff seeks an

administrative review, copies of his sentencing status sheets, a recalculation of his

sentence, and damages. (Id. at 3.)

II. STANDARD OF REVIEW

A. Motion to Dismiss, Federal Rule of Civil Procedure 12(b)(6)

When ruling on a motion to dismiss under Rule 12(b)(6), the Court must

accept as true all factual allegations in the complaint and all reasonable inferences

that can be drawn from them, viewed in the light most favorable to the plaintiff. See

In re Ins. Brokerage Antitrust Litig., 618 F.3d 300, 314 (3d Cir. 2010). The Court’s

inquiry is guided by the standards of Bell Atlantic Corp. v. Twombly, 550 U.S. 544

(2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009). Under Twombly and Iqbal,

pleading requirements have shifted to a “more heightened form of pleading.” See

Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009). To prevent dismissal,

all civil complaints must set out “sufficient factual matter” to show that the claim is

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facially plausible. Id. The plausibility standard requires more than a mere possibility

that the defendant is liable for the alleged misconduct. As the Supreme Court

instructed in Iqbal, “where the well-pleaded facts do not permit the court to infer

more than the mere possibility of misconduct, the complaint has alleged – but it has

not ‘show[n]’ – ‘that the pleader is entitled to relief.’” Iqbal, 556 U.S. at 679 (citing

Fed. R. Civ. P. 8(a)(2)).

Accordingly, to determine the sufficiency of a complaint under Twombly and

Iqbal, the United States Court of Appeals for the Third Circuit has identified the

following steps a district court must take when determining the sufficiency of a

complaint under Rule 12(b)(6): (1) identify the elements a plaintiff must plead to

state a claim; (2) identify any conclusory allegations contained in the complaint “not

entitled” to the assumption of truth; and (3) determine whether any “well-pleaded

factual allegations” contained in the complaint “plausibly give rise to an entitlement

to relief.” See Santiago v. Warminster Twp., 629 F.3d 121, 130 (3d Cir. 2010)

(citation and quotation marks omitted).

In ruling on a Rule 12(b)(6) motion to dismiss for failure to state a claim, “a

court must consider only the complaint, exhibits attached to the complaint, matters

of public record, as well as undisputedly authentic documents if the complainant’s

claims are based upon these documents.” Mayer v. Belichick, 605 F.3d 223, 230 (3d

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Cir. 2010) (citing Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., 998

F.2d 1192, 1196 (3d Cir. 1993)). A court may also consider “any ‘matters

incorporated by reference or integral to the claim, items subject to judicial notice,

matters of public record, orders, [and] items appearing in the record of the case.’”

Buck v. Hampton Twp. Sch. Dist., 452 F.3d 256, 260 (3d Cir. 2006) (quoting 5B

Charles A. Wright & Arthur R. Miller, Federal Practice & Procedure § 1357 (3d Ed.

2004)); see also Pryor v. Nat’l Collegiate Athletic Ass’n, 288 F.3d 548, 560 (3d Cir.

2002) (noting that when considering a motion to dismiss, courts may consider

“documents whose contents are alleged in the complaint and whose authenticity no

party questions, but which are not physically attached to the pleading”).

In the context of pro se prisoner litigation specifically, the court must be

mindful that a document filed pro se is “to be liberally construed.” Estelle v.

Gamble, 429 U.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 a 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).

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B. Civil Rights Statute, 42 U.S.C. § 1983

Section 1983 is the vehicle by which private citizens may seek redress for

violations of federal constitutional rights committed by state officials. See 42 U.S.C.

§ 1983. The statute states, in pertinent part:

Every person who, under color of any statute, ordinance, regulation,

custom, or usage, of any State or Territory or the District of Columbia,

subjects, or causes to be subjected, any citizen of the United States or

other person within the jurisdiction thereof to the deprivation of any

rights, privileges, or immunities secured by the Constitution and laws,

shall be liable to the party injured in an action at law, suit in equity, or

other proper proceeding for redress.

Id. “Section 1983 is not a source of substantive rights,” but is merely a means

through which “to vindicate violations of federal law committed by state actors.”

See Pappas v. City of Lebanon, 331 F. Supp. 2d 311, 315 (M.D. Pa. 2004) (quoting

Gonzaga Univ. v. Doe, 536 U.S. 273, 284-85 (2002)). To state a cause of action

under Section 1983, a plaintiff must allege that: (1) the conduct complained of was

committed by persons acting under color of state law; and (2) the conduct violated a

right, privilege, or immunity secured by the Constitution or laws of the United States.

See Harvey v. Plains Twp. Police Dep’t, 421 F.3d 185, 189 (3d Cir. 2005) (quoting

West v. Atkins, 487 U.S. 42, 48 (1988)).

Moreover, for a § 1983 claim to survive a motion to dismiss, the plaintiff must

sufficiently allege that the defendant was personally involved in the act or acts that

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the plaintiff claims violated his rights. See Rode v. Dellarciprete, 845 F.2d 1195,

1207 (3d Cir. 1988); Solan v. Ranck, 326 F. App’x 97, 100 (3d Cir. 2009).

Therefore, supervisors cannot be liable under § 1983 on the traditional standard

of respondeat superior. See Santiago, 629 F.3d at 128. Instead, there are two

theories of supervisory liability that are applicable to § 1983 claims: (1) “a supervisor

may be personally liable under § 1983 if he or she participated in violating the

plaintiff’s rights, directed others to violate them, or, as the person in charge, had

knowledge of and acquiesced in his subordinates’ violations”; and (2) policymakers

may also be liable under § 1983 “if it is shown that such defendants, ‘with deliberate

indifference to the consequences, established and maintained a policy, practice or

custom which directly caused [the] constitutional harm.’” See A.M. ex rel. J.M.K. v.

Luzerne Cty. Juvenile Det. Ctr., 372 F.3d 572, 586 (3d Cir. 2004).

III. DISCUSSION

In support of their motion to dismiss, Defendants argue that: (1) Defendants

Granlund, McKinney, and Lawlor should be dismissed because Plaintiff has not

alleged sufficient personal involvement; (2) Defendant Brittain should be dismissed

“because vicarious liability and denial of a grie[v]ance do not amount to sufficient

personal involvement”; and (3) Plaintiff’s state law claims should be dismissed on

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the basis of sovereign immunity. (Doc. No. 40 at 2.) The Court considers

Defendants’ arguments below.

A. Eighth Amendment Claim

Plaintiff maintains that Defendants demonstrated deliberate indifference, in

violation of the Eighth Amendment, by allegedly miscalculating or failing to correct

an alleged miscalculation of his sentence, resulting in him allegedly serving time

beyond his sentence’s termination. The Third Circuit has indicated that

“[s]ubjecting a prisoner to detention beyond the termination of his sentence has been

held to violate the [E]ighth [A]mendment’s proscription against cruel and unusual

punishment.” Moore v. Tartler, 986 F.2d 682, 686 (3d Cir. 1993). To maintain a

claim that an official’s improper sentence calculation violated the Eighth

Amendment, a plaintiff must allege that: (1) the official “had knowledge of the

prisoner’s problem and thus of the risk that unwarranted punishment was being, or

would be, inflicted”; (2) the official “either failed to act or took only ineffectual

action under circumstances indicating that his or her response to the problem was a

product of deliberate indifference”; and (3) a causal connection existed “between the

official’s response to the problem and the infliction of the unjustified detention.”

Sample v. Diecks, 885 F.2d 1099, 1110 (3d Cir. 1989).

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The Court’s liberal construction of Plaintiff’s amended complaint leads the

Court to conclude that Plaintiff has stated a plausible Eighth Amendment claim

against all moving Defendants at this time. See Estelle, 429 U.S. at 106. In his

amended complaint, Plaintiff alleges that Defendants McKinney and Granlund were

responsible for the miscalculation of his sentence. (Doc. No. 21 at 1, 4-5.) He

maintains further that all Defendants were aware of the alleged miscalculation and

took no action to rectify it. (Id. at 6-8.) Plaintiff asserts that Defendant Lawler was

aware that no sentencing order existed for Plaintiff’s one (1) to four (4) year

sentence. (Id. at 9.) Moreover, while Plaintiff’s only allegation against Defendant

Brittain is that she denied the appeal of his grievance regarding his sentence

calculation (id. at 2), the Court concludes that such is sufficient to state a claim that

Defendant Brittain was on notice of the alleged miscalculation and took no action to

correct it. See Sample, 885 F.2d at 1110. Accordingly, the Court will deny

Defendants’ motion to dismiss with respect to Plaintiff’s Eighth Amendment claim.

B. State Law Claims

As noted supra, Plaintiff asserts state law tort claims of fraud, negligence,

false imprisonment, and intentional infliction of emotional distress against

Defendants. (Doc. No. 21 at 2-4.) Under Pennsylvania’s sovereign immunity

statute, “the Commonwealth, and its officials and employees acting within the scope

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of their duties, shall continue to enjoy sovereign and official immunity and remain

immune from suit except as the General Assembly shall specifically waive the

immunity.” See 1 Pa. Cons. Stat. Ann. § 2310. Pursuant to Section 8522(b) of Title

42, the following nine exceptions to sovereign immunity are recognized: (1)

operation of any motor vehicle in the possession or control of a Commonwealth

party; (2) acts of health care employees of Commonwealth agency medical facilities

or institutions; (3) care, custody, or control of personal property in the possession or

control of Commonwealth parties; (4) dangerous conditions posed by

Commonwealth agency real estate and sidewalks; (5) dangerous conditions of

highways under the jurisdiction of Commonwealth agency that are created by

potholes or sinkholes or other similar conditions created by natural elements; (6)

care, custody, or control of animals in the possession or control of a Commonwealth

party; (7) sale of liquor at Pennsylvania liquor stores; (8) acts of a member of the

Pennsylvania military forces; and (9) administration, manufacture and use of a

toxoid or vaccine. See 42 Pa. Cons. Stat. Ann. § 8522(b). In the instant case,

Plaintiff’s claims do not fall within any of these nine (9) exceptions.

Moreover, sovereign immunity applies even to intentional torts committed by

Commonwealth defendants acting in their individual capacities. See Story v.

Mechling, 412 F. Supp. 2d 509, 518 (W.D. Pa. 2006), aff’d, 214 F. App’x 161 (3d

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Cir. 2007). Sovereign immunity “applies to Commonwealth employees in both their

official and individual capacities, so long as the employees are ‘acting within the

scope of their duties.’” See Larsen v. State Emps’ Ret. Sys., 553 F. Supp. 2d 403,

420 (M.D. Pa. 2008). In the instant case, Plaintiff’s amended complaint alleges that

Defendants were acting within the scope of their employment. Accordingly, because

they are entitled to sovereign immunity, the Court will grant Defendants’ motion to

dismiss with respect to Plaintiff’s state law tort claims.

C. Leave to Amend

Courts are cautioned that because of the liberal pleading standard, a plaintiff

should generally be granted leave to amend before dismissing a claim that is merely

deficient. See Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002).

The federal rules allow for liberal amendments in light of the “principle that the

purpose of pleading is to facilitate a proper decision on the merits.” Foman v. Davis,

371 U.S. 178, 182 (1962) (citations and internal quotations omitted). The Court may

deny a motion to amend where there is “undue delay, bad faith or dilatory motive on

the part of the movant, repeated failure to cure deficiencies by amendments

previously allowed, undue prejudice to the opposing party by virtue of allowance of

the amendment, [or] futility of the amendment.” Id. The Court must also determine

that a proposed amendment would be futile if the complaint, as amended, would not

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survive a motion to dismiss for failure to state a claim. In re NAHC, Inc. Sec. Litig.,

306 F.3d 1314, 1332 (3d Cir. 2002). In the instant case, the Court concludes that it

would be futile to permit Plaintiff to file an amended complaint with respect to his

state law tort claims because, as discussed supra, such claims are barred by sovereign

immunity. Accordingly, this matter will proceed on Plaintiff’s Eighth Amendment

claim against Defendants.

IV. CONCLUSION

For the foregoing reasons, Defendants’ motion to dismiss (Doc. No. 39) will

be granted in part and denied in part. The motion will be granted with respect to

Plaintiff’s state law tort claims. The motion will be denied with respect to Plaintiff’s

Eighth Amendment claim. An appropriate Order follows.

/s Sylvia H. Rambo

United States District Judge

Date: July 23, 2020

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