# Cummings v. McGinley

> District Court, M.D. Pennsylvania · December 27, 2023

URL: https://www.frixlaw.com/law-library/cases/10414047

## Case

- **Court:** District Court, M.D. Pennsylvania
- **Decided:** December 27, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10414047

## How later opinions describe it (automated extraction)

- Finding dismissal appropriate under rule 20 “given the hodgepodge of claims raised in the complaint”

## Opinion text

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA

WILLIAM CUMMINGS, :

Plaintiff, : CIV. NO. 1:23-CV-937

v. : (JUDGE MANNION)

THOMAS MCGINLEY, et al., :

Defendants. :

MEMORANDUM

Presently before the court in this pro se prisoner civil rights suit is the
report and recommendation of Magistrate Judge Martin C. Carlson, (Doc.
12), dated July 24, 2023, and Plaintiff’s motion for nunc pro tunc, (Doc. 13),
regarding his amended complaint. Judge Carlson conducted the legally
required screening review of Plaintiff’s amended complaint, (Doc. 10), and
recommends that it be dismissed with leave to amend. Plaintiff filed a timely
objection to Judge Carlson’s report. (Doc. 15). However, based on the court’s
review of the record as described below, the court will DISMISS Plaintiff’s
amended complaint without leave to amend and DENY Plaintiff’s motion for
nunc pro tunc.
Since the report correctly states the procedural and factual background
of this case, (Doc. 12, at 1-2), it will not be repeated herein. In short this is
one of several lawsuits brought by Plaintiff prisoner against state corrections
officers. This particular suit is brought against more than 80 correctional
defendants and involves a disparate array of incidents which allegedly took

place at three different prisons over a five-year period. Inter alia Plaintiff
alleges in cryptic fashion that there was hair in his food at one prison, his
food was cold at a different prison, and he was verbally and sexually

harassed at multiple prisons. On the basis of these far-flung averments,
Plaintiff seeks compensatory and punitive damages, along with injunctive
relief. However, Judge Carlson found, and the court agrees, Plaintiff’s
allegations present a hodgepodge of distinct acts, allegedly committed by

disparate actors at different times and places and include averments that fail
to state a claim upon which relief may be granted, and therefore must be
dismissed.

I. Legal Standard
When objections are timely filed to the report and recommendation of
a magistrate judge, the district court must review de novo 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 of review is
de novo, the district court “may also, in the exercise of sound judicial

discretion, rely on the Magistrate Judge’s proposed findings and
recommendations.” Bynum v. Colvin, 198 F. Supp 3d 434, 437 (E.D. Pa.
2016) (citing United Stated v. Raddatz, 447 U.S. 667, 676 (1980)).

District courts also have an on-going statutory obligation to
preliminarily review a pro se complaint to determine whether any claims are
frivolous, malicious, or fail to state a claim upon which relief may be granted.

See 28 U.S.C. '1915(e)(2)(B)(ii). This statutory text mirrors the language of
Rule 12(b)(6) of the Federal Rules of Civil Procedure, which provides that a
complaint should be dismissed for “failure to state a claim upon which relief
can be granted.” Fed. R. Civ. P. 12(b)(6). In determining whether a complaint

states a claim for relief, a court must accept the factual allegations in the
complaint as true, Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007),
and accept “all reasonable inferences that can be drawn from them after

construing them in the light most favorable to the non-movant.” Jordan v.
Fox, Rothschild, O’Brien & Frankel, 20 F.3d 1250, 1261 (3d Cir. 1994).
However, a court is not required to accept legal conclusions or “a formulaic
recitation of the elements of a cause of action.” Id.; see also Ashcroft v. Iqbal,

556 U.S. 662, 678 (2009) (“Threadbare recitals of the elements of a cause
of action, supported by mere conclusory statements, do not suffice”).
When presented with a pro se complaint, the court should construe the
complaint liberally and draw fair inferences from what is not alleged as well
as from what is alleged. Dluhos v. Strasberg, 321 F.3d 365, 369 (3d Cir.

2003); Youse v. Carlucci, 867 F.Supp. 317, 318 (E.D. Pa. 1994). Such a
complaint “must be held to less stringent standards than formal pleadings
drafted by lawyers.” Erickson v. Pardus, 127 S.Ct. 2197, 2200 (quoting

Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976)).
However, Rule 8 also plays an important role in pro se litigation, setting
minimal pleading thresholds which must be met in order to initially state a
claim. Therefore, dismissal of a complaint pursuant to Rule 8 is appropriate

when a complaint is “illegible or incomprehensible,” Scibelli v. Lebanon
County, 219 F. App’x 221, 222 (3d Cir. 2007), or when a complaint “is not
only of an unwieldy length, but it is also largely unintelligible.” Stephanatos

v. Cohen, 236 F. App’x 785, 787 (3d Cir. 2007). Thus, a pro se plaintiff’s
complaint must recite factual allegations that are sufficient to raise the
plaintiff’s claimed right to relief beyond the level of mere speculation, set forth
in a “short and plain” statement.
II. Discussion
Based on its own review of the record, the court agree with all but one

of Judge Carlson’s findings and for the reasons discussed below finds
Plaintiff’s objection to those findings are meritless.
A. Plaintiff fails to follow the Federal Rules of Civil Procedure.

Plaintiff has not sufficiently plead personal involvement in the alleged
constitutional torts by the more than eighty Defendants who are listed in his
amended complaint. To state a constitutional tort a plaintiff must show that
the individual defendants actively deprived him of a right secured by the

constitution. See Morse v. Lower Merion School Dist., 132 F.3d 902 (3d Cir.
1997); see also Maine v. Thiboutot, 448 U.S. 1 (1980). Constitutional tort
liability is also personal in nature and can only follow personal involvement

in the alleged wrongful conduct shown through specific allegations of
personal direction or actual knowledge and acquiesce in the challenged
practice. Robinson v. City of Pittsburgh, 120 F. 3d 1286 (3d Cir. 1997).
Plaintiff fails to do this. He names the 80 plus correctional defendants in the

introduction to his amended complaint and then leaves the court to ferret out
what defendants are alleged to have done. For the same reason the
amended complaint runs afoul of Rule 8.
Under Rule 8 courts have found dismissal proper where a complaint
“left the defendants having to guess what of the many things discussed

constituted [a cause of action],” Binsack v. Lackawanna County Prison, 438
F. App’x 158, 160 (3d Cir. 2011), and where a “complaint fails to clearly
identify which parties [the plaintiff] seeks to sue.” Earnest v. Ling, 140 F.

App’x 431 (3d Cir. 2005). Here the amended complaint leaves Defendants
to guess which allegation constitute a cause action against which
Defendants, who are not identified with any specific allegation.
In his objection to Judge Carlson’s report, Plaintiff argues that his

amended complaint pleads the personal involvement of each Defendant in
violating his First, Eight, and Fourteenth Amendment rights. Specifically, he
asserts that each of the amended complaint’s 102 paragraphs are

specifically detailed to a particular Defendant. Plaintiff is wrong. His
amended complaint does not connect the individual Defendants to all or even
most of his allegations and the many paragraphs of his amended complaint
are most certainly not detailed to particular Defendants. Plaintiff also claims

that he has shown causation through a pattern of antagonism but that does
not excuse Plaintiff from complying with the Federal Rules of Civil Procedure.
Therefore, the amended complaint fails to state a claim and must be

dismissed under Rule 8.
Similarly, since the allegations made by Plaintiff appear to involve
distinct acts committed by more than eighty disparate parties at different

times and places, there is no single coherent legal, logical, topical, or
temporal connection between the various claims. Accordingly, the amended
complaint also runs afoul of Rule 20, which in relevant part only allows

joinder of allegations arising out of the same transaction, occurrence, or
series of transactions or occurrences. In his objection to Judge Carlson’s
report, Plaintiff argues that all of the Defendants have obviously conspired
against him and “everything is connected.” But beyond such conclusory

allegations Plaintiff fails to tie his allegations let alone the Defendants
together. Therefore, the hodgepodge of allegations raised in the complaint
must also be dismissed under Rule 20. See Boretsky v. Governor of New

Jersey, 433 F. App’x 73, 77 (3d Cir. 2011) (Finding dismissal appropriate
under rule 20 “given the hodgepodge of claims raised in the complaint”).
B. Plaintiff’s Eighth Amendment claims based on verbal
harassment fail as a matter of law.

Additionally, Plaintiff claims based on verbal harassment fail as a
matter of law because a prisoners may not premise a constitutional claim on
such harassment. “It is well settled that verbal harassment of a prisoner,

although deplorable, does not violate the Eighth Amendment.” Robinson v.
Taylor, 204 F. App’x 155, 156 (3d Cir. 2006); see also Lindsey v. O’Connor,
337 F. App’x 319, 321 (3d Cir. 2009) (Verbal harassment of a prisoner,

although distasteful, does not violate the Eighth Amendment). Plaintiff does
not object to his finding. In fact, Plaintiff was previously told that he may not
pursue claims based solely upon alleged verbal harassment. See Cummings

v. Weller, No. 1:22-CV-1119, 2022 WL 4594574, at *4 (M.D. Pa. Sept. 2,
2022), report and recommendation adopted, No. CV 1:22-1119, 2022 WL
4585534 (M.D. Pa. Sept. 29, 2022). Therefore, Plaintiff’s claims based on
verbal harassment will be dismissed.

C. Plaintiff’s requests for injunctive relief are moot.
Finally, Judge Carlson and this court read Plaintiff’s amended
complaint as seeking broad injunctive relief from three state prisons where

he is no longer imprisoned. As a result, Judge Carlson found Plaintiff’s
request for injunctive relief from Defendants at his former places of
incarceration are moot. Under the mootness doctrine “[i]f developments
occur during the course of adjudication that eliminate a plaintiff’s personal

stake in the outcome of a suit or prevent a court from being able to grant the
requested relief, the case must be dismissed as moot.” Blanciak v. Allegheny
Ludlum Corp., 77 F.3d 690, 698-99 (3d Cir. 1996); see e.g. Fortes v. Harding,

19 F.Supp.2d 323, 326 (M.D. Pa. 1998) citing Abdul-Akbar v. Watson, 4 F.3d
195, 206-07 (3rd Cir. 1993); Weaver v. Wilcox, 650 F.2d 22, 27 (3rd Cir.
1981) (“[Prisoner-plaintiff’s] transfer to another institution moots any claims

for injunctive or declaratory relief.”)
In his objection to Judge Carlson’s report, Plaintiff argues that
Defendants’ conduct is capable of repetition and part of pattern displayed at

each of his last three prisons. However, “[a] dispute qualifies for the
exception to the mootness doctrine for a controversy that is capable of
repetition, yet evading review only if (1) the challenged action is in its duration
too short to be fully litigated prior to its cessation or expiration, and (2) there

is a reasonable expectation that the same complaining party will be
subjected to the same action again.” United States v. Sanchez-Gomez, 138
S. Ct. 1532, 200 L. Ed. 2d 792 (2018).

Here it appears Plaintiff is insinuating that because he suffered the
conduct alleged herein at his last three prisons, he will continue to suffer that
same conduct at his current prison, SCI-Fayette, which is located in the
Western not Middle District of Pennsylvania. But that insinuation appears

premised on the existence of Plaintiff’s otherwise plead but unsubstituted
allegations of a vast state-wide conspiracy against him. Moreover, the
Defendants named in this particular lawsuit are corrections officers at

Plaintiff’s former prisons not at SCI-Fayette. So even if the conduct alleged
herein is capable of repetition, it would not be at the hands of Defendants,
but correction officers outside this court’s jurisdiction. Therefore, Plaintiff’s

many requests for injunctive relief in the Middle District of Pennsylvania are
still moot and will be dismissed.
D. Further amendments to Plaintiff’s complaint would be futile.

While Judge Carlson recognizes that his screening merits analysis
calls for dismissal of Plaintiff’s action in its current form, he recommends that
Plaintiff be given another final opportunity to amend his complaint. The court
disagrees with this recommendation. A district court has three grounds on

which it may deny leave to amend a complaint: “(1) [where] the moving party
has demonstrated undue delay, bad faith or dilatory motives; (2) [where] the
amendment would be futile; or (3) the amendment would prejudice the other

party.” Lake v. Arnold, 232 F.3d 360, 373 (3d Cir. 2000) citing Foman v.
Davis, 371 U.S. 178, 182, 83 S.Ct. 227 (1962).
The instant action is one of several similar lawsuits filed by Plaintiff
against correction officers at the various prisons where he has been

incarcerated. See Cummings v. Kramer, No. 1:22-CV-1118, 2022 WL
4594494, at *4-5 (M.D. Pa. Sept. 7, 2022), report and recommendation
adopted, No. CV 1:22-1118, 2022 WL 4585535 (M.D. Pa. Sept. 29, 2022);

See Cummings v. Weller, No. 1:22-CV-1119, 2022 WL 4594574, at *4 (M.D.
Pa. Sept. 2, 2022), report and recommendation adopted, No. CV 1:22-1119,
2022 WL 4585534 (M.D. Pa. Sept. 29, 2022); and Cummings v. Konyski, et

al., Civil No. 3:15-cv-2245.
In these other suits Plaintiff has attempted and failed to bring similar
allegations because those allegations were so fundamentally flawed that

they could not be construed as constituting a plausible complaint. Likewise,
it is clear from these other cases that Plaintiff has a penchant for filing
amendments which are flawed in ways that already have been identified for
Plaintiff by the court. Since Plaintiff has already been given numerous

opportunities in other lawsuits to more artfully articulate allegations like those
alleged herein and failed to heed the court’s warning each time, giving him
another opportunity to amend fundamentally flawed allegations would be

futile. Therefore, Plaintiff’s complaint will be dismissed with prejudice.
E. Plaintiff’s motion for Nunc Pro Tunc is inappropriate.
During the pendency of Judge Carlson’s report and recommendation
and in tandem with his objections to that report, Plaintiff also filed a motion

nunc pro tunc, where he appears to ask the court to accept corrections to his
amended complaint. Federal courts may issue nunc pro tunc orders, or “now
for then” orders, Black's Law Dictionary, at 1287, to “reflect the reality” of

what has already occurred. Roman Cath. Archdiocese of San Juan, Puerto
Rico v. Acevedo Feliciano, 140 S. Ct. 696, 700–01, 206 L. Ed. 2d 1 (2020)
quoting Missouri v. Jenkins, 495 U.S. 33, 49, 110 S.Ct. 1651, 109 L.Ed.2d

31 (1990). Generally, nunc pro tunc orders are used to correct the judicial
record of clerical errors to more clearly reflect the intention of court. See
Cuebas y Arredondo v. Cuebas y Arredondo, 223 U.S. 376, 390, 32 S.Ct.

277, 56 L.Ed. 476 (1912). (“[A nunc pro tunc] decree presupposes a decree
allowed, or ordered, but not entered, through inadvertence of the court.”) But
“[n]unc pro tunc orders are not some Orwellian vehicle for revisionist
history—creating ‘facts’ that never occurred in fact.” United States v.

Gillespie, 666 F.Supp. 1137, 1139 (ND Ill. 1987). Put plainly, the court
“cannot make the record what it is not.” Jenkins, 495 U.S. at 49, 110 S.Ct.
1651.

Accordingly, a motion for nunc pro tunc is not the proper vehicle for
Plaintiff to correct or in actuality further amend his own amended complaint.
It is also not clear what error Plaintiffs motion, which seemingly just repleads
Plaintiff unsubstantiated allegations of a vast conspiracy among correction

officers against him, seeks to correct. Still, it is clear Plaintiff’s motion does
not seek to correct a clerical error of the court but instead engage in
revisionist history. Thus, Plaintiff’s motion for nunc pro tunc will be denied.
III. Conclusion
Based on the foregoing the Report and Recommendation of Judge

Carlson, (Doc. 12), will be ADOPTED IN PART. Plaintiff’s objections, (Doc.
15), are OVERULED. Plaintiff’s amendment complaint, (Doc. 10), will be
DISMISSED with prejudice and Plaintiff’s motion for nunc pro tunc, (Doc. 13),

will be DENIED. The Clerk of Court will be directed to close this case. An
appropriate order follows.

s/ Malachy E. Mannion
MALACHY E. MANNION
United States District Judge
DATE: December 26, 2023
23-937-01

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10414047. Public record. Not legal advice.