Roche v. SCI-Mahanoy RHU

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

JAMES ROCHE, Civil No. 3:24-cv-270

Plaintiff (Judge Mariani)

v .

WARDEN MASON, et al, .

Defendants

MEMORANDUM

I. Background

On February 14, 2024, Plaintiff James Roche (“Roche”), at all relevant times a state

inmate incarcerated at the State Correctional Institution at Mahanoy (“SCI-Mahanoy”),

initiated this action pursuant to 42 U.S.C. § 1983. (Doc. 1). Roche subsequently filed two

amendments to the complaint, wherein he named as Defendants Superintendent Mason,

Captain Taylor, Lieutenant Rebarchak, Correctional Officer Rennenger, Correctional Officer

Kabilko, and John Doe Correctional Officers. (Docs. 4, 22).

On May 13, 2024, Defendants filed a Rule 12(b) motion to dismiss. (Doc. 12). On

October 2, 2024, the Court granted Defendants’ motion and dismissed the amended

complaint with leave to amend certain claims. (Docs. 24, 25). Specifically, the Court

granted the motion with prejudice and without leave to amend as to the FTCA claim and the

claims against Defendants Mason and Taylor. (/d.). The Court granted the motion without

prejudice and with leave to amend as to the claims against Defendant Rebarchak and the

John Doe individuals. (/d.). Additionally, the Court dismissed the amendment against

Defendants Rennenger and Kabilko, but with leave to amend. (Id.).

Presently before the Court is Roche’s proposed second amended complaint. (Doc.

26). After reviewing the proposed second amended complaint, the Court will dismiss it as

Roche has failed to cure the deficiencies listed in the October 2, 2024, Memorandum. The

proposed second amended complaint asserts essentially identical claims against the

Defendants for the same underlying events that gave rise to the claims in the prior

amendments. The Court will also dismiss the action against the John Doe Defendants

pursuant to Federal Rule of Civil Procedure 4(m).

Il. Legal Standard

A federal court may properly dismiss an action sua sponte under the screening

provisions of 28 U.S.C. § 1915(e)(2)(B) and § 1915A(b) if “the action is frivolous or

malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief

from a defendant who is immune from such relief.” Ball v. Famiglio, 726 F.3d 448, 452 (3d

Cir. 2013). Under 28 U.S.C. § 1915(e)(2)(B)(i) and § 1915A(b)(1), a court may dismiss a

complaint as frivolous if it is “based on an indisputably meritless legal theory” or a “clearly

baseless” or “fantastic or delusional” factual scenario. Neitzke v. Williams, 490 U.S. 319,

327-28 (1989); Wilson v. Rackmill, 878 F.2d 772, 774 (3d Cir. 1989).

In dismissing claims under §§ 1915(e)(2) and 1915A, district courts apply the

standard governing motions to dismiss brought pursuant to Rule 12(b)(6) of the Federal

Rules of Civil Procedure. See, e.g., Smithson v. Koons, Civ. No. 15-01757, 2017 WL

3016165, at *3 (M.D. Pa. June 26, 2017) (stating “[t]he legal standard for dismissing a

complaint for failure to state a claim under § 1915A(b)(1), § 1915(e)(2)(B)(ii), or §

1997e(c)(1) is the same as that for dismissing a complaint pursuant to Rule 12(b)(6) of the

Federal Rules of Civil Procedure.”); Mitchell v. Dodrill, 696 F. Supp. 2d 454, 471 (M.D. Pa.

2010) (explaining that when dismissing a complaint pursuant to § 1915A, “a court employs

the motion to dismiss standard set forth under Federal Rule of Civil Procedure 12(b)(6)’);

Tourscher v. McCullough, 184 F.3d 236, 240 (3d Cir. 1999) (applying Federal Rule of Civil

Procedure 12(b)(6) standard to dismissal for failure to state a claim under §1915(e)(2)(B)).

In rendering a decision on a motion to dismiss, a court should not inquire “whether a plaintiff

will ultimately prevail but whether the claimant is entitled to offer evidence to support the

claims.” Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); Nami v. Fauver, 82 F.3d 63, 66 (3d

Cir. 1996). The court must accept as true the factual allegations in the complaint and draw

all reasonable inferences from them in the light most favorable to the plaintiff. See Phillips

v. Cnty. of Allegheny, 515 F.3d 224, 229 (3d Cir. 2008).

Because Roche proceeds pro se, his pleading is liberally construed and his

complaint, “however inartfully pleaded, must be held to less stringent standards than formal

pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citations

omitted).

lil. Allegations of the Second Amended Complaint

In the proposed second amended complaint, Roche alleges the following:

C.O. Rennenger—His conduct was making an odd comment about me,

saying that | “look like Nicki Manaj’ at approximately the time 7:30p.m. during

block out; the place being the day room of CA Block. Date was 12-22-22.

C.O. Kabilko—his conduct was that of defamation and libel, which caused me

great emotional distress and fear for my safety in prison. C.O. Kabilko would

call me “a faggot, a rapist, a pedophile,” and say that | “fuck my mother’ in

front of other inmates, who would target me on the block. The time was

during afternoon and evening yards from 1pm to 6pm. The place this would

happen was the yard for inmates, the dates were November 2022 to January

2023, happening 3-4 times per week.

Lt. Rebarchak—his conduct included saying “this is the least amount of force

necessary” when | was put on the ground, naked and cuffed, with a John Doe

C.O.’s knee on my neck while being videotaped, and with the camera in the

cell as well as camcorder. The time was 3-4pm, the place RHU-A Block. The

date was March 2023; | do not have the exact day due to not having access

to a calendar while being in maximum confinement 24/1 in the RHU.

“John Doe” Officers—! have no way to identify the officers due to them

withholding their names over the cell microphone, and not wearing nametags

when | was sprayed, and had a knee in my neck. These actions took place

from February 2023 to March 2023.

(Doc. 26).

IV. Discussion

A. Defendant Rebarchak

Roche attempts to state a claim against Defendant Rebarchak. However, the

proposed second amended complaint does not provide any more detail than the prior

amendment. Roche alleges that Defendant Rebarchak was present during the strip search

and during the videotape of the incident and said, “this is the least amount of force

necessary.” (Doc. 26, p. 2). The proposed second amended complaint does not allege that

Defendant Rebarchak touched Roche, directed the officers to perform the strip search,

directed any comments at him, did anything to him after the strip search, or was otherwise

responsible for any alleged injury. (/d.).

Liability against Defendant Rebarchak is still only based on his presence as the

ranking officer, and Roche failed to cure the deficient claims against him. Without specific

allegations that Defendant Rebarchak personally contributed to any alleged harm, there is

no basis for Roche to proceed against him. Because the proposed second amended

complaint is devoid of factual allegations from which the Court can plausibly infer that

Defendant Rebarchak was personally involved in an alleged constitutional violation, the

claims against him will be dismissed. See Atkinson v. Taylor, 316 F.3d 257, 271 (3d Cir.

2003); Rode v. Dellarciprete, 845 F.2d 1195, 1207-08 (3d Cir. 1988) (when a plaintiff merely

hypothesizes that an individual defendant may have had knowledge of or personal

involvement in the deprivation of his rights, individual liability will not follow).

B. Defendants Rennenger and Kabilko

Roche again seeks to impose liability on Defendants Rennenger and Kabilko based

on their verbal harassment. (Doc. 26). He alleges that Defendant Rennenger said “that [he]

‘look[eq] like Nicki Manaij[,}” and that Defendant Kabilko called him “a faggot, a rapist, [and]

a pedophile.” (/d. at pp. 1-2). There is no assertion that any of those purported statements

were accompanied by any physical abuse or that there was any instance where officers

Rennenger and Kabilko escalated the harassment beyond mere words. (See id.).

As the Court previously explained, the use of words generally cannot constitute an

assault actionable under § 1983. See Dunbar v. Barone, 487 F. App’x 721, 723 (3d Cir.

2012) (“[VJerbal threats or taunts, without more, are not sufficient to constitute a violation of

the Eighth Amendment.”). Roche cannot state a claim that his constitutional rights were

violated based upon allegations of only verbal harassment. No matter how offensive the

language that officers Rennenger and Kabilko allegedly used towards Roche, that alone

does not give rise to a constitutional claim. See Aleem-X v. Westcott, 347 F. App’x 731 (3d

Cir. 2009) (“Verbal abuse of a prisoner, even of the lewd variety [], is not actionable under §

1983.”). The proposed second amended complaint adds no facts or allegations to address

these concerns.

In the proposed second amendment complaint, Roches does not allege that any of

the verbal harassment allegedly voiced against him by officers Rennenger and Kabilko was

accompanied by a reinforcing act. More importantly, it is not alleged that the alleged verbal

abuse was accompanied by any physically intrusive behavior. Roche only alleges that he

suffered emotional distress and fear. Given the circumstances described by Roche, the

purported verbal remarks, although potentially offensive, were not of such magnitude to

shock the conscience and thus, did not rise to the level of a constitutional violation. As

such, Roche has failed to cure any claims against these Defendants for the reasons

previously stated, and the claims against Defendants Rennenger and Kabilko will be

dismissed.

C. Federal Rule of Civil Procedure 4(m)

Rule 4(m) sets forth the following time frame a plaintiff has to serve a defendant with

the summons and copy of the complaint:

If a defendant is not served within 90 days after the complaint is filed, the

court -- on motion or on its own after notice to the plaintiff -- must dismiss the

action without prejudice against that defendant or order that service be made

within a specified time. But if the plaintiff shows good cause for the failure, the

court must extend the time for service for an appropriate period.

FED. R. Civ. P. 4(m).

The John Doe individuals were named in the original complaint that was filed on or

about February 14, 2024 and, to date, have not been properly been identified or served in

this case. The Court must engage in a two-step process in determining whether to dismiss

the unidentified, non-served Defendants or grant Roche additional time to effect service.

“First, the district court should determine whether good cause exists for an extension of

time. If good cause is present, the district court must extend time for service and the inquiry

is ended. If, however, good cause does not exist, the court may in its discretion decide

whether to dismiss the case without prejudice or extend time for service.” Petrucelli v.

Bohringer & Ratzinger, 46 F.3d 1298, 1305 (3d Cir. 1995). Good cause requires good faith

on the part of the party seeking an enlargement and some reasonable basis for

noncompliance with the time specified in the rules. MC/ Telecomm. Corp. v. Teleconcepts,

Inc., 71 F.3d 1086, 1097 (3d Cir. 1995). In determining whether good cause exists, a

court's “primary focus is on the plaintiff's reasons for not complying with the time limit in the

first place.” Id. Although prejudice is a factor to be considered, the absence of prejudice to

the opposing party alone does not constitute good cause to excuse late service. /d.

In the present matter, Roche failed to establish good cause. After the expiration of

the ninety-day time period set forth in Rule 4(m), the Court notified Roche that the action

against the John Doe Defendants was subject to dismissal and directed him to show cause

why the action against these Defendants should not be dismissed pursuant to Rule 4(m).

(Doc. 16; see also Doc. 8 J 8). On October 2, 2024, the Court again granted Roche the

opportunity to identify the John Doe Defendants. (Docs. 24, 25). In response, Roche

asserts that he “[has] no way to identify the officers.” (Doc. 26, p. 3). Roche’s reason is a

deflection, not a good faith explanation. His pro se status is not good cause to excuse his

failure to timely identify or serve these Defendants. Veal v. United States, 84 F. App’x 253,

256 (3d Cir. 2004). Based upon the lack of any reasonable explanation for his failure to

adhere to the requirements of Rule 4, the Court finds that Roche failed to establish good

cause.

If a plaintiff cannot show good cause for his failure to serve the defendant within

ninety days, a district court may either dismiss the defendant, or exercise its discretion to

order that service be made within a specific time. Petrucelli, 46 F.3d at 1305; see also FED.

R. Civ. P. 4(m). It is Roche's responsibility to properly identify all defendants, and provide

accurate mailing addresses for the defendants, in a timely fashion. (See Doc. 8 ff 7-8)

(advising Roche that failure to properly name a defendant, or provide an accurate mailing

address for a defendant, may result in dismissal of the claims against that defendant

pursuant to Federal Rule of Civil Procedure 4(m)).

In light of Roche’s lack of good faith effort to identify or serve the John Doe

Defendants, despite this Court’s warning of the possible consequences, including dismissal,

the Court concludes that dismissal is appropriate under the present circumstances.

Accordingly, the non-identified, non-served Defendants will be dismissed from this action.

V. Leave to Amend

When a complaint fails to present a prima facie case of liability, district courts must

generally grant leave to amend before dismissing the complaint. See Grayson v. Mayview

State Hosp., 293 F.3d 103, 108 (3d Cir. 2002); Shane v. Fauver, 213 F.3d 113, 116-17 (3d

Cir. 2000). In evaluating a request for leave to amend, the Court may consider whether

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, futility of amendment, etc.” Foman v. Davis,

371 U.S. 178, 182 (1962); see also Oran v. Stafford, 226 F.3d 275, 291 (3d Cir. 2000).

Futility of amendment occurs when the amended complaint does not state a claim upon

which relief can be granted. See In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410,

1434 (3d Cir. 1997).

Given the Court’s above determination that Roche failed to state a plausible claim for

relief against the remaining Defendants, the proposed second amended complaint could not

survive a renewed motion to dismiss, and the proposed amendment is futile. See Jablonski

v. Pan Am. World Airways, Inc., 863 F.2d 289, 292 (3d Cir. 1988) (an amendment to a

complaint is futile if it does “not cure the deficiency in the original complaint or if the

amended complaint cannot withstand a renewed motion to dismiss”). Moreover, the Court

has afforded Roche several opportunities to amend his complaint and he has failed to cure

the specific deficiencies outlined by the Court. See Jones v. Unknown D.O.C. Bus Driver &

Transp. Crew, 944 F.3d 478, 483 (3d Cir. 2019) (where an inmate plaintiff “has already had

two chances to tell his story...giving him further leave to amend would be futile.”).

VI. Conclusion

For the foregoing reasons, the proposed second amended complaint (Doc. 26) will

be dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii). The Court will also dismiss the

action against the John Doe Defendants for insufficient service of process pursuant to

Federal Rule of Civil Procedure 4(m).

A separate Order shall issue.

& : a if } tii

Robert D. Mariani-

United States District Judge

Dated: code 1 2024

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