# Cummings v. Weller

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

URL: https://www.frixlaw.com/law-library/cases/10414063

## 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/10414063

## How later opinions describe it (automated extraction)

- Finding unprovoked assaults by prison personnel which resulted in serious physical injuries created an exception to three strikes rule from proceeding in forma pauperis.
- finding frivolous prisoner’s claim that his constitutional rights were violated when he was served cold food
- 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, : Civ. No. 1:22-CV-1119

Plaintiff, :

v. : (JUDGE MANNION)

A. WELLER, 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.
52), dated September 14, 2023. Judge Carlson recommends that
Defendants’ motion to dismiss, (Doc. 40), be GRANTED and Plaintiff’s
amended complaint, (Doc. 16), be DISMISSED without leave to amend.
Plaintiff filed a timely objection to Judge Carlson’s report. (Doc. 53).
However, based on the court’s review of the record that objection will be
OVERULED and Judge Carlson’s report will be ADOPTED IN ITS
ENTIRETY.
Since the report correctly states the procedural and factual background
of this case, (Doc. 52, at 1-3), 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 some nineteen correctional
defendants challenging (1) a host of disciplinary citations on First, Fifth, and
Fourteenth Amendment grounds, (2) the general conditions of his

confinement, (3) alleged verbal abuse by correctional staff, (4) incidental
exposure to a chemical spray deployed against other inmates, and (5) his
cable television bill as well as access to typewriters or word processors.

Defendants have filed a motion to dismiss these allegations for failure to
state a claim pursuant to Rule 12(b)(6). Judge Carlson found and the court
agrees based on its own review of the record that many of Plaintiff’s claims
are either time barred or fail as a matter of law and the rest are unexhausted

under the Prison Litigation Reform Act (“PLRA”). Therefore, Defendants’
motion to dismiss will be granted.

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)).

Rule 12(b)(6) permits the court to dismiss a complaint if it fails 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 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 agrees with all of
Judge Carlson’s findings, and for the reasons discussed below finds

Plaintiff’s objections to those findings are meritless.
A. Many of Plaintiff’s claims are time barred.
Plaintiff attempts to conflate into a single lawsuit distinct acts

committed by disparate parties at different times and places, with many of
the allegations falling beyond the applicable two-year statute of limitations.
This is despite the fact that the applicable limitations period has been

previously explained to Plaintiff in clear and precise terms. 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). Plaintiff seeks to avoid this statute of
limitation by arguing prison officials systematically denied him access to the
courts, but court records reveal that Plaintiff actively litigated another case
during the time he was allegedly denied access. See Cummings v. Konyski,

et al., Civil No. 3:15-cv-2245.
In his objection to Judge Carlson’s report, Plaintiff further alleges
without citing any authority that his claims were equitably tolled. Generally

equitable tolling only applies when a plaintiff does not have sufficient
knowledge of the facts supporting his or her cause of action due to one of
three limited circumstances: “(1) where the defendant has actively misled the
plaintiff respecting the plaintiff’s cause of action; (2) where the plaintiff in

some extraordinary way has been prevented from asserting his or her rights;
or (3) where the plaintiff has timely asserted his or her rights mistakenly in
the wrong forum.” Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d
1380, 1387 (3d Cir. 1994), overruled in irrelevant part by Rotkiske v. Klemm,
890 F.3d 422, 428 (3d Cir. 2018) (en banc).

Here Plaintiff does not plead that he lacked sufficient knowledge of
facts to support his allegation due to any circumstance let alone the three
circumstances enumerated by the Third Circuit. Moreover, Judge Carlson

found, and the court based upon its own review agrees, the recitals in the
amended complaint make it clear that, for Plaintiffs, his allegations all had a
degree of permanence which would have immediately put him on notice of
the need to assert his rights. Therefore, all allegations that occurred more

than two years before this lawsuit was filed, i.e., pre-date May 2020, are
barred by the applicable two-year statute of limitation and will be dismissed.
B. Many of Plaintiff’s claims violate the Federal Rule of Civil

Procedure.
Furthermore, Plaintiff’s conflated claims violate the rules of civil
procedure in at least three ways. First, his claims violate Rule 12(b)(6), since
they are devoid of well-plead facts giving rise to a plausible claim for relief.

Second, these claims, which are unmoored in time, violate Rule 8 because
they are so vague that they leave “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. Third, the constant conflation
of distinct acts committed by different parties at different times and places
makes these claims a “hodgepodge” in violation of the joinder standard of

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”).

In his objection to Judge Carlson’s report, Plaintiff seemingly argues
that these violations of the Federal Rules of Civil Procedure do not matter,
because Defendants violated his First, Eighth, and Fourteenth Amendment
Rights. Even if Defendants, did violate Plaintiff’s Constitutional rights, which

Plaintiff fails to plead they did, such violations would not excuse Plaintiff from
complying with the Federal Rules of Civil Procedure. Therefore, in addition
to the applicable statute of limitation barring the dated aspects of Plaintiff’s

hopelessly conflated allegations, the Federal Rules of Civil Procedure also
require their dismissal.
C. Plaintiff’s Eight Amendment claims fail as a matter of law.
To the extent Plaintiff’s Eighth Amendment are not time barred or

violate the Federal Rules of Civil Procedure those claims also fail as a matter
of law. Plaintiff alleges that he was verbally harassed by prison staff in
violation of his Eighth Amendment rights, despite the fact he 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).
Plaintiff claims in his objection to Judge Carlson’s report that Defendants’
verbal harassment stopped him from practicing his religion in violation of the

First Amendment. But he does not plead any specific facts showing how
Defendants’ alleged verbal harassment violated his First Amendment Rights,
leaving the court with only a bald legal conclusion. Therefore, Plaintiff’s
claims based solely on verbal harassment will also be dismissed.

Similarly, Plaintiff’s allegation that he occasionally received cold meals
does not state an Eighth Amendment claim. Conditions of prison
confinement violate the Eighth Amendment only if they “deprive inmates of

the minimal civilized measure of life’s necessities.” Atkinson v. Taylor, 316
F. 3d 257, 272 (3d Cir. 2003) citing Rhodes v. Chapman, 452 U.S. 337, 347,
101 S. Ct. 2392, 69 L.Ed.2d 59 (1981). So, while the Eight Amendment
requires prison officials to provide adequate food, “there is no constitutional

right to hot meals.” Laufgas v. Speziale, 263 Fed. Appx. 192, 198 (3d Cir.
2008) citing Brown-El v. Delo, 969 F. 2d 644, 648 (8th Cir. 1992) (finding
frivolous prisoner’s claim that his constitutional rights were violated when he
was served cold food)). Plaintiff does not object to this finding. Therefore,
Plaintiff’s claims based on cold meals will be dismissed.

Even more frivolous than the above claim, Plaintiff also challenges the
constitutionality of his access to cable television and typewriters or word
processors. To be clear Plaintiff does not claim that he has been completely

denied access to cable television or typewriters/word processers. He only
claims that his cable bill is too high and his access to typewriters/word
processors is too limited. In his objection to Judge Carlson’s report Plaintiff
further argues that he is entitled to cable television access, and the fact that

he is not being rendered the services he paid for has forced him to sue. The
court could not disagree more. “[C]onsistent with settled case law, [an
inmate] has no constitutional right to watch cable TV in his cell.” Clinton v.

Camp Hill Prison, No. 1:11-CV-2200, 2012 WL 315279, at *5 (M.D. Pa. Jan.
11, 2012), report and recommendation adopted, No. 1:11-CV-2200, 2012
WL 315098 (M.D. Pa. Feb. 1, 2012). Nor do complaints about limited access
to prison typewriters raise matters of constitutional dimension. See Brown v.

Kerr, No. CIV.A. 08-6385 (JBS), 2009 WL 1969155, at *5 (D.N.J. July 1,
2009). Therefore, these claims will be dismissed.
Plaintiff still makes one Eighth Amendment claim that is not obviously

without merit. Specifically, Plaintiff alleges that he was incidentally sprayed
by a chemical agent, OC spray, used to quell disturbances by other inmates
in other cells. Plaintiff does not assert that he was ever intentionally sprayed

with this agent, but in his objection to Judge Carlson’s report claims he was
effectively sprayed when the other inmates in his cell block were sprayed
because Defendants did not first close the vents between cells. Either way

Defendants are entitled to qualified immunity on these claims.
The doctrine of qualified immunity protects government officials from
liability for civil damages “insofar as their conduct does not violate clearly
established statutory or constitutional rights of which a reasonable person

would have known.” Pearson v. Callahan, 555 U.S. 223, 231 (2009). A right
is clearly established if “every reasonable official would have understood that
what he is doing violates that right.” Mullenix v. Luna, 577 U.S. 7, 11. To be

clearly established, there does not have to be a case directly on point, “but
existing precedent must have placed the statutory or constitutional question
beyond debate.” Id. (quoting Ashcroft v. Al-Kidd, 563 U.S. 731, 741 (2011)).
Here there is no existing precedent finding inadvertent exposure to OC spray

used against another inmate violates an individual’s Eighth Amendment
rights.
Conversely, there is precedent for granting qualified immunity to

correction officer’s accused of misusing OC spray. See e.g., Rivera v.
Redfern, 2023 WL 2139827, at *9 (M.D. Pa. Feb. 21, 2023) (Schwab, M.J.)
(collecting cases and granting qualified immunity because “it is not clearly

established that secondhand exposure to OC spray in response to another
inmate’s actions across the block, would violate an individual’s rights”)
(internal quotations and citations omitted); Stroman v. Wetzel, 2020 WL

1531325, at *6 (M.D. Pa. Mar. 31, 2020) (Conner, J) (“Defendants simply
could not have recognized that their use of OC spray in response to another
inmate’s actions across the block would violate a ‘clearly established
statutory or constitutional right[ ] of which a reasonable person would have

known’”) (citations omitted); but see Roberts v. Luther, No. 1:21-CV-00958,
2021 WL 5233318, at *7 (M.D. Pa. Nov. 10, 2021) (Kane, J) (declining to
grant qualified immunity where correctional staff sprayed OC spray within

close proximity to the plaintiff’s cell and directly into ventilation system).
While Plaintiff does allege that Defendants failed to protect him by inter
alia failing to close the vents to his cell when using OC spray in his cell block,
he does not allege that Defendants sprayed OC spray in close proximity to

his cell and directly into his prison’s ventilation system. Therefore, Plaintiff
has failed to show the Defendants violated a clearly established right by
incidentally exposing him to OC spray, and Defendants are entitled to

qualified immunity on his Eighth Amendment claims based on that exposure.
D. Plaintiff’s fails to state a claim under the ADA.
Beyond the constitution, Plaintiff also alludes to the individual

Defendants violating the Americans with Disabilities Act (ADA), 42 U.S.C.
'12132, et seq. However, Judge Carlson found it is well settled: “Individuals
are not liable under Title II [of the ADA].” Snider v. Pennsylvania DOC, 505

F. Supp. 3d 360, 405-406 (M.D. Pa. 2020). Plaintiff does not object to this
finding. Therefore, any ADA claim based on individual liability will be
dismissed.
E. Plaintiff’s remaining claims are unexhausted.

Plaintiff’s claims not timed barred or otherwise legally meritless still fail
because Plaintiff did not exhaust his administrative remedies prior to
proceeding in federal court. The PLRA provides that “[n]o action shall be

brought with respect to prison conditions under . . . [42 U.S.C. § 1983], or
any other Federal law, by a prisoner confined in any jail, prison, or other
correctional facility until such administrative remedies as are available are
exhausted.” 42 U.S.C. § 1997e(a). Section 1997e’s exhaustion requirement

applies to a wide range of inmate complaints, including damages complaints
like those made here. See Spruill v. Gillis, 372 F.3d 218 (3d Cir. 2004); Booth
v. Churner, 206 F.3d 289 (3d Cir. 2000). While this exhaustion requirement

is not a jurisdictional bar to litigation, this requirement is strictly enforced by
the courts. See e.g. Nyhuis v. Reno, 204 F.3d 65, 75-76 (3d Cir. 2000)
(citations omitted). Because of the important policies fostered by this

exhaustion requirement, it has been held that there is no futility exception to
section 1997e’s exhaustion requirement. Id.
Moreover, courts have also imposed a procedural default component

on this exhaustion requirement, holding that inmates must fully satisfy the
administrative requirements of the inmate grievance process before
proceeding into federal court. See Spruill, 372 F.3d at 223. Applying this
procedural default standard to section 1997e’s exhaustion requirement,

courts have concluded that inmates who fail to fully, or timely, complete the
prison grievance process are barred from subsequently litigating claims in
federal court. See, e.g., Booth v. Churner, 206 F.3d 289 (3d Cir. 2000); Bolla

v. Strickland, 304 F. App’x 22 (3d Cir. 2008); Jetter v. Beard, 183 F. App’x
178 (3d Cir. 2006).
Here Judge Carlson found, and the court agrees based on its own
review of Plaintiff’s uncontested grievance record, that Plaintiff is a prolific,

but erratic, grievant. Between 2018 and 2022, Cummings has filed some 242
grievances but only fully exhausted ten of these grievances. Of these ten
grievances seven appear to have involved matters which fell outside the
statute of limitations, and the remaining three grievances cannot be linked in
an intelligible way to Plaintiff’s surviving allegations.

In his objection to Judge Carlson’s report, Plaintiff does not argue his
remaining claims were exhausted, but instead argues that he is exempt from
the mandatory exhaustion requirement under the bodily harm exception. To

support this claim Plaintiff cites a litany of cases, none of which are
applicable or analogous to his claims. For example, Plaintiff cites Downey v.
Pennsylvania Department of Corrections, where the Third Circuit found that
a prisoner, who became blind in both eyes, was not required to exhaust his

grievances under the PLRA, because his rapidly deteriorating vision
constituted an urgent condition necessitating immediate medical care. 968
F.3d 299, 307 (3d. Cir. 2020). Here Plaintiff does not allege any urgent

medical condition or that he is suffering from any ailment remotely as
debilitating as blindness.
Likewise, in Helling v. McKinney, the Supreme Court acknowledged
that “[t]he Courts of Appeal have plainly recognized that a remedy for unsafe

conditions need not await a tragic event.” 509 U.S. 25, 26 (1993). But this
case makes no mention of the PLRA or exhaustion of grievances. Plaintiff
further cites a series of out of circuit cases that are not binding on this court

and again don’t even mention the PLRA. See e.g. Johnson v. Warner, 200
F. App'x 270 (4th Cir. 2006) (Finding unprovoked assaults by prison
personnel which resulted in serious physical injuries created an exception to

three strikes rule from proceeding in forma pauperis.)
The only relevant case Plaintiff cites is Rinaldi v. United States, where
the Third Circuit held that a prisoner is excused from the exhausting his

grievances, when a prison official inhibits that prisoner from making a
grievance through serious threats of retaliation and bodily harm. 904 F.3d
257, 267 (3d Cir. 2018). Still to overcome a failure-to-exhaust, a prisoner
must show (1) that the threat was sufficiently serious that it would deter a

reasonable inmate of ordinary firmness and fortitude from lodging a
grievance and (2) that the threat actually did deter this particular inmate. Id.
at 269.

Like the plaintiff in Rinaldi, Plaintiff argues that he is excused from the
exhaustion requirement of the PLRA because prison officials have allegedly
threatened to kill him. Notwithstanding the fact that Plaintiff offers no
evidence of these threats other than his own affidavit, which does not even

state when, where, or who threatened him, Plaintiff does not specify if
Defendants alleged threats were in retaliation to a particular grievance he
filed. In fact, Plaintiff does not even plead that Defendants alleged threats

were in response to any grievance he filed let alone his unexhausted
grievances. Simultaneously Plaintiff has continued to file grievances and
litigate multiple lawsuits against the same prison officials that he alleges have

threatened to kill him. Therefore, Plaintiff has not shown that alleged threats
from prison officials, even if sufficiently serious, did actually deter him from
continuing to pursue grievances, so he is not exempt from the exhaustion

requirement of the PLRA, and is unexhausted claims will be dismissed.
F. Plaintiff’s complaint cannot be cured by further amendments.
Finally Judge Carlson, recommends that the Amended Complaint be
dismissed without further leave to amend because Plaintiff has a previously

described penchant for filing amendments which are flawed in ways that
already have been identified for Plaintiff by the court. Furthermore, the
aforesaid flaws are so fundamental that no amount of artful advocacy could

save them. Plaintiff does not specifically object to this recommendation and
only argues that his objections make clear it discovery should proceed. The
court disagrees and will follow Judge Carlson’s recommendation and not
grant Plaintiff leave to further amend his complaint.

III. Conclusion
Based on the foregoing the Report and Recommendation of Judge

Carlson, (Doc. 52) will be ADOPTED IN ITS ENTIRETY. Plaintiff’s
objections, (Doc. 53), are OVERULED. Defendants’ motion to dismiss, (Doc.
40), will be GRANTED and Plaintiff’s amended complaint, (Doc. 16), will be

DISMISSED without further leave to amend. 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
22-1119-02

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10414063. Public record. Not legal advice.