# SCOTT v. DEPUTY CLOSE

> District Court, W.D. Pennsylvania · June 28, 2021

URL: https://www.frixlaw.com/law-library/cases/10416742

## Case

- **Court:** District Court, W.D. Pennsylvania
- **Decided:** June 28, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
EARNEST SCOTT, JR., )
Plaintiff,
vs. Civil Action No. 3:21-cv-46
) Judge Stephanie L. Haines
DEPUTY CLOSE. e/ al., )
Defendants.
MEMORANDUM AND ORDER
This is a civil rights case brought under 42 U.S.C. § 1983 by Earnest Scott Jr. (“Plaintiff),
a prisoner incarcerated at SCI-Houtzdale, primarily alleging violations of his rights under the
Eighth Amendment relating to conditions of confinement and inadequate medical care. This
matter was referred to Magistrate Judge Keith A. Pesto for proceedings in accordance with the
Federal Magistrates Act, 28 U.S. C. § 636, and Local Civil Rule 72.D.
I. Background
Plaintiff's complaint consists of both a form complaint and a written “original complaint”
[Doc, 5]. Reading these documents together, Plaintiff makes allegations against numerous
individuals, including Deputy Close, Captain Jones, L.T, Buterbaugh, Nurse Michael Radaker,
Corrections Officer Gondek, Sergeant Jones and Unit Manager Kelly. Plaintiff alleges that these
individuals deprived him of his “basic human necessities” in various ways. The complaint as a
whole raises the following claims: (1) an Eighth Amendment claim for cruel and unusual
punishment related to Plaintiff's conditions of confinement; (2) an Eighth Amendment claim for
deliberate indifference to Plaintiff's serious medical needs related to his diabetes; (3) a Fourteenth
Amendment equal protection claim based on racial harassment; and, (4) a Fourteenth Amendment
due process claim related to an alleged thett of Plaintiffs personal property.
]

On March 24, 2021. Judge Pesto filed a Report and Recommendation recommending that
the complaint be dismissed, without leave to amend, as to all of Plaintiff's asserted claims with the
exception of the deliberate indifference claim against Radaker, which Judge Pesto recommends
also be dismissed, but with leave to amend [Doc. 6]. Judge Pesto found that Plaintiff failed to state
a claim upon which relief can be granted as to any claim as asserted, and that amendment would
be futile as to all claims except the deliberate indifference claim against Radaker.
After being granted one extension, Plaintiff timely filed objections to the Report and
Recommendation on April 5, 2021 [Doc. 10]. Plaintiff specifically objects to the dismissal of his
inadequate medical treatment claim against Buterbaugh and Gondek on the ground that he “forgot”
to allege that both of those individuals, in addition to Nurse Radaker, were informed that he is
diabetic. He also specifically objects to the dismissal of his Eighth Amendment claim against
Deputy Close, Captain Jones and Buterbaugh relating to his conditions of confinement. More
generally, Plaintiff further objects to the dismissal of his claims without leave to amend, to Judge
Pesto’s jurisdiction, and to the dismissal of his “state law claim for supplemental jurisdiction.”
Il. Standard
When a party objects timely to a magistrate judge’s report and recommendation, the district
court must “make a de novo determination of those portions of the report or specified proposed
findings or recommendations to which objection is made.” EEOC v. City of Long Branch, 866
F.3d-93, 100 (3d Cir. 2017) (quoting 28 U.S.C. § 636(b)(1)); see also Local Civil Rule 72.D.2. th
doing so, the Court may accept, reject or modify, in whole or in part, the findings and
recommendations made in the report. 28 U.S.C. § 636(b)(1). A district court is not required to
make any separate findings or conclusions when reviewing a recommendation de novo under §
636(b). See Hill v. Barnacle, 655 F. App’x 142, 148 (3d Cir. 2016).

?

IfI. Discussion
A. Report and Recommendation [Doc. 6] and Objections [Dec. 10]
Upon de novo review of the record and the Report and Recommendation, and pursuant to
Local Civil Rule 72.D.2, the Court will aécept in whole the findings and recommendations of
Judge Pesto in this matter.
Initially, as to Plaintiff's Eighth Amendment claim relating to conditions of confinement.
Judge Pesto correctly found that Plaintiff's complaint fails to state a plausible claim that Plaintiff
was deprived of any basic human need, such as food, warmth and exercise. See Wilson v. Seiter,
501 U.S. 294, 304 (1991). Moreover, because Plaintiff failed to allege any physical injury in
connection with his conditions of confinement, he cannot recover compensatory damages for any
alleged emotional distress. 42 U.S.C. § 1997e(e), Judge Pesto thoroughly explained in the Report
and Recommendation why Plaintiff would not be entitled to any type of damage for this claim,
and why amendment to seek other remedies is not available to him, and his analysis in this regard
is sound and will be adopted by this Court.
Likewise, Judge Pesto properly found that Plaintiff has failed to state a plausible claim for
deliberate indifference against any defendant. Other than Radaker, none of the other named
defendants in Plaintiff's complaint are medical personnel, The case law in this Circuit is clear that
non-medical defendants cannot be found to be deliberately indifferent “simply because they failed
to respond directly to the medical complaints of a prisoner who was already being treated by the
prison doctor.” Durmer v. O'Carroll, 991 F.2d 64, 69 (3d Cir. 1993). Accordingly, “absent a
reason to believe (or actual knowledge) that prison doctors or their assistants are mistreating (or
not treating) a prisoner, a non-medical prison official . . . will not be chargeable with the Eighth
Amendment scienter requirement of deliberate indifference.” Spruill y. Gillis, 372 F.3d 218, 236

(3d Cir. 2004). Here, there is nothing in the record to indicate that any non-medical personnel
were aware that Plaintiff was being mistreated. Thus, Judge Pesto properly found that Plaintiff
has failed to state a claim against any of them for deliberate indifference to a serious medical need.
As to Radaker. Judge Pesto also reasonably found that Plaintiff has failed to state a
plausible deliberate indifference claim. As noted, the only relevant allegations that Plaintiff makes
are that Radaker knew Plaintiff is diabetic, that Plaintiff said he felt his blood sugar was low, and
that he wanted something to eat. These are insufficient to state a plausible claim that Radaker was
deliberately indifferent to a serious medical need when Plaintiff described no signs or symptoms
of distress that would have alerted Radaker to a need for medical care. Accordingly, Judge Pesto
properly found that Plaintiff's complaint fails to state a plausible claim against Radaker for
deliberate indifference. Judge Pesto did, however, recommend that Plaintiff be granted leave to
amend his Eighth Amendment deliberate indifference claim against Radaker, which might be
“fleshed out” with additional factual allegations. This recommendation also will be adopted.
Plaintiff first objects to the dismissal of his inadequate medical treatment claim against
Buterbaugh and Gondek on the ground that he “forgot” to allege that both of those individuals, in
addition to Radaker, were informed that he is diabetic. This objection will be overruled. In the
first instance, Judge Pesto reviewed the complaint as filed, which did not contain any such
allegations, and objections to a Report and Recommendation are not designed to permit a litigant
to correct deficiencies in the complaint after the fact. In any event, these “forgotten” allegations
would have no impact on the analysis. In order to state a plausible deliberate indifference claim
against Buterbaugh and Gondek, as non-medical personnel, Plaintiff must do more than allege that
those defendants knew he is diabetic — he must allege that they knew he was being mistreated.
Plaintiff's complaint makes no such allegation.

Plaintiff next objects to the dismissal of his Eighth Amendment claim against Deputy
Close, Captain Jones and Buterbaugh relating to his conditions of confinement. However, for the
reasons set forth by Judge Pesto, Plaintiff's complaint is insufficient to state a plausible claim
relating to conditions of confinement because he was not deprived of any basic human need.
Plaintiff further objects to the dismissal of his claims without leave to amend, to Judge
Pesto’s jurisdiction, and to the dismissal of his “state law claim for supplemental jurisdiction.”
These objections also will be overruled. As to amendment, under 28 U.S.C, $1915, a court must
grant a plaintiff leave to amend his complaint, unless amendment would be inequitable or futile.
See Grayson v. Mapview State Hosp., 293 F.3d 103, 114 (3d Cir. 2002): see also Cato v. United
States, 70 F.3d 1103, 1106 (9th Cir. 1995) (a pro se litigant must be given leave to amend his or
her complaint, and some notice of its deficiencies, unless it is absolutely clear that the deficiencies
of the complaint could not be cured by amendment), Here, Judge Pesto correctly found, for the
reasons set forth in the Report and Recommendation, that amendment of any of Plaintiff's claims.
other than the deliberate indifference claim against Radaker, would be futile. In particular, he
explained in detail why any attempt to amend Plaintiff's Eighth Amendment conditions of
confinement claim would be futile, and his analysis is sound.
Next, Plaintiff objects to Judge Pesto’s jurisdiction over this case based on his selection of
the district judge option. Under the Federal Magistrates Act, 28 U.S. C. § 636, and Local Civil
Rule 72.D, when a prisoner selects the district judge option, the case is assigned to a District Judge
and referred back to the Magistrate Judge for proceedings, with the Magistrate Judge’s rulings
subject to review by the District Judge. Accordingly, Judge Pesto properly has jurisdiction over □

this proceeding.

Finally, to the extent Plaintiff objects to the dismissal of his “state law claim for
supplemental jurisdiction,” his objection is without merit. A review of Plaintiff's complaint, even
under the most liberal reading, demonstrates that Plaintiff did not raise any state law claim. All of
his claims are based on alleged violations of his constitutional rights under § 1983. Plaintiff makes
ho mention, in either his form complaint or his written “original complaint.” that he is asserting
any claim under Pennsylvania state law.
As none of the objections do anything to alter Judge Pesto’s findings and conclusions, and
otherwise are unavailing, Plaintiff's objections to the Report and Recommendation will be
overruled.
B. Subsequent Filings
Since filing his objections to the Report and Recommendation on April 5, 2021, Plaintiff
has continuously filed a stream of motions, pleadings and other correspondence, without wailing
for a ruling from this Court on the Report and Recommendation, which has served to slow the
resolution of this matter considerably. Judge Pesto entered an order [Doc. 14] on May 7, 2021,
resolving two of Plaintiff's motions but the filings have continued unabated.
On May 29, 2021, Plaintiff filed a “Third Amended Complaint” [Doc. 15], purportedly
pursuant to Judge Pesto’s Report and Recommendation. In this proposed complaint. he reasserts
his deliberate indifference claim against Radaker while adding Buterbaugh as a defendant to that
claim. He also seeks to add two new claims, one against Correct Care Solution under the
Fourteenth Amendment for failure to train, supervise and discipline, and a claim for deliberate
indifference/cruel and unusual punishment under the Eighth and Fourteenth Amendments against
Deputy Close and Captain Jones. This complaint will be dismissed.
First, Plaintiff filed this new complaint before this Court had the opportunity to review

Judge Pesto’s Report and Recommendation or consider Plaintiff's objections to that R&R, and
therefore was filed prematurely. Ln addition, Plaintiff's Third Amended Complaint seeks to add a
new claim against a new defendant and seeks to amend his claim against Close and Jones. Judge
Pesto’s Report and Recommendation, which this Court now adopts, recommended that Plaintiff
be granted leave to amend only his deliberate indifference claim against Radaker, not amend other
claims or add new claims. Because Plaintiff's “Third Amended Complaint” was filed prematurely,
and in any event fails to comply with the Report and Recommendation. and this Order adopting it,
the Third Amended Complaint is a nullity and will be dismissed.
On the same day that Plaintiff filed his Third Amended Complaint, he also filed a document
which he entitled a “Memorandum of Law in Support of “FRO” Preliminary Injunction Motion”
[Doc. 16] alleging that he is being retaliated against by officials at SCI-Houtzdale. As this
document was received at the same time as his Third Amended Complaint, and Plaintiff never
filed a separate motion for 4 preliminary injunction, the Clerk’s Office reasonably docketed this
document as a Brief'in Support of his Third Amended Complaint, and no further action was taken
on it.
On June 9, 2021, Plaintiff filed two more motions: a motion to appoint counsel [Doc. 17]
and a motion for an immediate-ruling on preliminary injunction [Doc. 19], in which he alleges for
the first time that he was sexually assaulted at SCI-Houtzdale and asks for an immediate transfer
from the facility. These motions will be denied.
First. Plaintiff has never properly filed a motion for a preliminary injunction and his motion
for an immediate ruling on such a motion is moot. Moreover, Plaintiff cannot raise in a
“memorandum of law” an entirely new allegation that has nothing at all to do with the claims
raised in his original complaint, the only complaint that is operative at this time. If Plaintiff wants

to raise a claim relating to an alleged sexual assault, he will need to file a new complaint in a new
case.
Next, the appointment of counsel under 28 U.S.C. § 1915(e)(1) is not warranted at this time
as Plaintiff has failed to allege or establish any of the relevant factors necessary to justify the
appointment of counsel at this stage of the proceedings. See Tabron v. Grace, 6 F.3d 147 (3d Cir.
1993). Moreover, Local Civil Rule 10.C provides that, absent special circumstances, no motion
for the appointment of counsel will be granted until after dispositive motions have been resolved,
There ate no special circumstances present at this time which would permit the appointment of
counsel under the Local Rules at this stage of the litigation, which has not even yet advanced
beyond the screening stage.
On June 10 and 11, 2021, the Court received three additional documents from Plaintiff.
The first of these he captioned a proposed “order to show cause for a preliminary injunction” [Doc.
20], directing Radaker, Jones and Close to appear for a hearing on his request for an injunction
enjoining any of those defendants from having any contact with him. Also received were two
letters, one directed to the Clerk’s Office [Doc. 21] inquiring as to why his “motion for an order
to show cause for a preliminary injunction” was docketed as a brief in support of his Third
Amended Complaint,’ and the second letter directed to this member of the Court [Doc. 22]
complaining that his “motion for preliminary injunction” was incorrectly docketed as a brief.
Enclosed with this letter was a copy of his proposed order to show cause for preliminary injunction
[Doc. 20], which in the letter he indicates he is submitting because he was sexually assaulted.”

' This is the document Plaintiff captioned “Memorandum of Law in Support of -FRO* Preliminary
Injunction Motion” [Doc. 16].
° The Court notes that the proposed “order to show cause for preliminary injunction” makes no
mention of Plaintiff being sexually assaulted, but refers only to “ongoing retaliation” [Doc. 20].

On June 21, 2021, Plaintiff filed yet another motion, this one requesting a change of venue
to the Middle or Eastern District of Pennsylvania, or, alternatively, the recusal of Judge Pesto [Doc.
23]. In this motion, Plaintiff again takes the Clerk's Office to task for docketing a “memorandum
of law” as a “brief” instead of a motion, as he alleges he intended,? and insinuates that the clerk
who docketed the motion may “know someone” from SCI-Houtzdale and that the “whole court”
may be playing “devil’s advocate” for that facility. He further reports that his “investigation” has
uncovered that Judge Pesto “may” have been a guard at SCI-Houtzdale or worked for the
Department of Corrections. Plaintiff's latest motion has no basis in fact or law and-will be denied,
As to venue, this is a § 1983 action. Because § 1983 contains no specific venue provision,
the general venue requirements of 28 U.S.C. § 1391 are applicable to this suit. See Urrutia v.
Harrisburg County Police Department, 91 F.3d 451, 462 (3d Cir.1996); Parks v. SCE-Camp Hill,
Civil Action No. 18-1205, 2018 WL 7269792, at * 2 (W.D. Pa. Nov. 23, 2018). Here, Plaintiff
does not allege that venue is not proper in the Western District of Pennsylvania, and, in fact, it is.
This ts the district within which SCI-Houtzdale is located. the district in which all of the events or
omissions giving rise to Plaintiffs asserted claims occurred, and likely is the district in which most
or all of the defendants reside. See 28 U.S.C. § 1391(b). Conversely, Plaintiff has made no
attempt to show that venue would be proper in either the Middle or Eastern District of
Pennsylvania. Accordingly, his motion to change venue will be denied,

* It should be strongly emphasized here that the task of the Clerk’s Office is to file a document as
submitted. If that document is submitted as a “memorandum,” as Plaintiff's document clearly was
captioned, then it is to be docketed as either a “brief” or a “memorandum.” To repeat, the document at
issue was captioned by Plaintiff precisely as “Memorandum of Law in Support of =FRO® Preliminary
Injunction Motion.” It certainly was not, as Plaintiff now insists, captioned as a motion. It is not the
responsibility or obligation of the Clerk’s Office to peruse a document submitted by a pro se litigant and
try to read his mind as to what that litigant “intended” the document to be. In addition, because the
document was submitted with Plaintiff's Third Amended Complaint, and not witha preliminary injunction
motion, it was not unreasonable for the Clerk*s Office to link it with the document filed along with it.

Plaintiff's motion for the recusal of Judge Pesto also has no nierit, By statute, recusal is
required when a judge's impartiality “might reasonably be questioned,” 28 U.S:C. § 455(a), or
“[w]here he has a personal bias or prejudice concerning a party.” 28 U.S.C. § 455(b)(1). The test
for recusal is an objective one and requires recusal where a “reasonable person, with knowledge
of all the facts, would conclude that the judge's impartiality might reasonably be questioned.” Jn
re Kensington Int'l Ltd., 368 F.3d 289, 301 (3d Cir. 2004), The bias required before recusal is
warranted under § 455 “must stem from an extrajudicial source.” Liteky v. United States, 510 U.S.
540, 544, 554, (1994).
Here, Plaintiff's sole basis for seeking the disqualification of Judge Pesto is that his own
“investigation” revealed that Judge Pesto “may” have been a guard at SCl-Houtzdale or for the
Pennsylvania Department of Corrections. This allegation is unfounded and untrue, and is
insufficient to warrant recusal. Instead, Plaintiff's allegations appear to have no basis other than
his displeasure with Judge Pesto’s Report and Recommendation, and the way in which his copious
submissions have been handled by the Clerk’s Office. Such allegations do not form an adequate
basis for recusal, as “opinions formed by the judge on the basis of facts introduced or events
occurring in the course of the current proceedings, or of prior proceedings, do not constitute a basis
for a bias or partiality motion unless they display a deep-seated favoritism or antagonism that
would make fair judgment impossible.” In re Brown. 696 F. App'x 600, 601 (3d Cir. 2017)
(quoting Liteky, 510 U.S. at 555). Plaintiffs wholly unsubstantiated accusations against Judge
Pesto do not merit recusal, and to the extent his motion seeks recusal in the alternative to transfer,
it also will be denied. See, e.g., Williams y. Wetzel, No. 2:16-CV-01233, 2017 WL 2936744, at *2
(W.D. Pa. July 10, 2017) (denying recusal based on unsubstantiated allegations regarding
Magistrate Judge and her supposed relationship to defendants).

10

IV. Conclusion
Plaintiff's complaint fails to state any claim upon which relief can be granted. With the
exception of Plaintiff's Eighth Amendment claim for deliberate indifference against Radaker,
amendment of any of the other claims would be futile, and those claims all will be dismissed with
prejudice, The Court will grant Plaintiff leave to amend only the Eighth Amendment deliberate
indifference claim against Radaker in order to provide Plaintiff an opportunity to cure the
deficiencies in that claim identified herein.
All of Plaintiffs remaining motions filed after Judge Pesto submitted his Report and
Recommendation will be denied. Plaintiffs “Third Amended Complaint” also will be dismissed
as it was prematurely filed and does not comply with either Judge Pesto’s Report and
Recommendation or this Order.
Accordingly, the following order is entered:

ORDER OF COURT
AND NOW, this 28" day of June, 2021, IT [IS ORDERED that Plaintiff's objections [Doc.
10] to the Magistrate Judge’s Report and Recommendation [Doc. 6], hereby are overruled: and,
IT FURTHER IS ORDERED, for the reasons set forth in the Magistrate Judge’s Report
and Recommendation [Doc. 6], which hereby is adopted as the opinion of the Court, that this action
is dismissed with prejudice without leave to amend, as to all claims asserted in Plaintiff's
complaint, with the exception of Plaintiff's Eighth Amendment deliberate indifference claim
against Radaker, which also is dismissed, but without prejudice; and,
IT FURTHER IS ORDERED that Plaintiff hereby is granted leave to file an amended
complaint that complies with the Federal Rules of Civil Procedure and cures the deficiencies

11

identified in this Memorandum and Order. Leave to amend the complaint is granted only as to
Plaintiff's Eighth Amendment claim against Radaker for deliberate indifference to a serious
medical need. The Court will not consider any claim that has been dismissed with prejudice
herein nor any other unrelated claim that Plaintiff seeks to raise for the first time. Plaintiff's
amended complaint shall be filed no later than July 26, 2021. Plaintiff is advised that the failure
to timely file an amended complaint will subject this case to dismissal for failure to prosecute; and
If FURTHER IS ORDERED that Plaintiff's “Third Amended Complaint” [Doc. 15]
hereby is dismissed with prejudice as prematurely filed and as being non-compliant with the
Report and Recommendation and this Order adopting it: and,
IT FURTHER IS ORDERED that Plaintiff's motion to appoint counsel [Doc. 17] hereby
is denied: and,
IT FURTHER IS ORDERED that Plaintiff's motion for immediate ruling on. preliminary
injunction [Doc. 19] hereby is denied: and,
IT FURTHER IS ORDERED that Plaintiffs motion to change venue. or, alternatively,
motion to recuse Judge Pesto [Doc. 23] hereby is denied.
yy

Stephanie L. Haines
United States District Judge

12

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10416742. Public record. Not legal advice.