The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
RALPH MCCLAIN, : Civil No. 1:19-cv-1951
:
Plaintiff, :
:
v. :
:
PENNSYLVANIA DEPARTMENT :
OF CORRECTIONS, et al., :
:
Defendants. : Judge Sylvia H. Rambo
MEMORANDUM
Before the court is a report and recommendation (“R&R”) by Magistrate
Judge Carlson (Doc. 56) in which he recommends that Plaintiff’s motion to further
amend his complaint (Doc. 43) be granted in part and denied in part insofar as
Plaintiff should not be permitted to pursue a First Amendment retaliation claim but
should be permitted to add the remaining additional defendants and claims. Plaintiff
timely filed an objection to the R&R (Docs. 57-58), and Defendants filed a response
to the objection (Doc. 60). For the reasons set forth below, the court will adopt the
R&R in part and deny it in part.
I. Background
Upon de novo review of the record, the court adopts the R&R’s statement of
facts and procedural history concerning this matter. Briefly, Plaintiff Ralph McClain
(“McClain”) is a state inmate who filed this action against the Pennsylvania
Department of Corrections (“DOC”) and several correctional staff, alleging that his
Eighth and Fourteenth Amendment rights were violated. According to the First
Amended Complaint, McClain’s claims stem from his intake at the State
Correctional Institution at Camp Hill, where, following an initial evaluation, staff
indicated he may need to be interviewed further for a risk of suicide. (Doc. 24.) After
subsequent interviews with multiple prison staff, some of whom were unnamed in
his initial amended complaint, McClain was placed in the Residential Treatment
Unit (“RTU”) because it was determined that he was at a high risk of suicide. (Id. at
¶ 16.) McClain alleges that on multiple occasions, he informed these defendants that
he had frequent thoughts of committing suicide. (Id. at ¶ 20.) Nonetheless, on
December 13, 2018, McClain was moved out of the RTU—where the cells were
specially designed without bars or hooks to keep inmates from attempting suicide—
and placed on B Block. (Id. at ¶¶ 21, 23.) That same day, McClain attempted to take
his life by hanging himself from the bars of his cell in B Block. (Id. at ¶ 22.)
In the instant motion to file a second amended complaint following several
months of discovery, McClain seeks to add nine new defendants as well as new
Eighth Amendment claims, a First Amendment retaliation claim, a claim under the
Americans with Disability Act, and state law negligence claims. The magistrate
judge recommends granting leave to amend with respect to all additional defendants
and claims with the exception of the retaliation claim.
II. Legal Standard
When objections are timely filed to a magistrate judge's report and
recommendation, the district court must conduct a de novo review of those portions
of the report to which objections are made. 28 U.S.C. § 636(b)(1); Brown v. Astrue,
649 F.3d 193, 195 (3d Cir. 2011). Although the standard is de novo, the extent of
review is committed to the sound discretion of the district judge, and the court may
rely on the recommendations of the magistrate judge to the extent it deems
proper. Rieder v. Apfel, 115 F. Supp. 2d 496, 499 (M.D. Pa. 2000) (citing United
States v. Raddatz, 447 U.S. 667, 676 (1980)). For those sections of the report and
recommendation to which no objection is made, the court should, as a matter of good
practice, “satisfy itself that there is no clear error on the face of the record in order
to accept the recommendation.” FED. R. CIV. P. 72(b), advisory committee notes; see
also Univac Dental Co. v. Dentsply Intern., Inc., 702 F. Supp. 2d 465, 469 (M.D.
Pa. 2010) (citation omitted). Regardless of whether or not timely objections are
made, the district court may accept, not accept, or modify, in whole or in part, the
findings or recommendations made by the magistrate judge. 28 U.S.C. § 636(b)(1);
Local Rule 72.31.
III. Discussion
The R&R recommends, in part, that McClain not be permitted to add a First
Amendment retaliation claim in his second amended complaint. In analyzing the
proposed claim through the futility framework of Federal Rule of Civil Procedure
15, the magistrate judge relied on McClain’s apparent concession that his so-called
protected speech amounted to inappropriate sexual advances toward RTU staff.
(Doc. 56, pp. 14-15.) The magistrate judge concluded that such speech is not
protected by the First Amendment and cannot form the basis of McClain’s retaliation
claim and thus leave to amend would be futile.
In his objection to the report and recommendation, McClain argues that he
should be entitled to pursue his claim of First Amendment retaliation for his exercise
of free speech because, contrary to the R&R’s findings (see Doc. 56, pp. 13-14), he
has never conceded that the speech at issue amounted to inappropriate sexual
advances toward RTU staff at the prison despite it being classified as such by prison
officials. He emphasizes that he never received a reprimand from the prison for use
of inappropriate language or sexual advances during his time in the RTU. Instead,
he states that he was retaliated against for his “frequent attention seeking for his
depression and that his frequent request to speak with the RTU counselor and
psychologist was misconstrued and looked at as him seeking a personal relationship
with them.” (Doc. 57, p. 6 of 10.)
The court is constrained to grant McClain’s objection. While Defendants point
to evidence to suggest that the speech did in fact amount to sexual harassment and
unwanted advances toward RTU staff, taking this evidence into account at this stage
in the proceedings impermissibly requires the court to consider matters outside the
pleadings. See Tri3 Enterprises, LLC v. Aetna, Inc., 535 F. App’x 192, 195 (3d Cir.
2013). Therefore, while there is a serious question as to whether Plaintiff can
establish that his speech should be deemed worthy of First Amendment protection,
such an issue is better resolved for summary judgment. Because the court further
concludes that the defendants would not be unfairly prejudiced by the addition of
this claim as it arises out of the same nucleus of operative facts as the other claims
in this case, the court will permit Plaintiff to add the First Amendment retaliation
claim.
IV. Conclusion
For the reasons stated herein, the R&R will be adopted in part and denied in
part. An appropriate order will issue.
s/Sylvia H. Rambo
Sylvia H. Rambo
United States District Judge
Dated: November 9, 2021