HILL v. WETZEL

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

LAVOND HILL, )

Plaintiff,

vs. Civil Action No. 3:21-cv-008

} Judge Stephanie L. Haines

JOHN E. WETZEL, et ai., ) Magistrate Judge Keith A. Pesto

Defendants.

)

MEMORANDUM ORDER

Presently before the Court is an Amended Complaint in civil action under 42 U.S.C. § 1983

filed pro se by Lavond Hill (“Plaintiff”) (ECF No. 30). Plaintiff sued twenty-five defendants for

incidents which took place at the State Correctional Institution at Houtzdale (“SCI-Houtzdale”),

which Plaintiff claims violated the law and his civil rights. /d. at 2. 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.

A. Standard of Review

Under the Prisoner Litigation Reform Act (‘“PLRA”), courts are required to screen

complaints brought by prisoners in all in forma pauperis cases and to sua sponte dismiss cases that

are frivolous or that fail to state a claim on which relief may be granted.' 28 U.S.C. §§ 1915(e)(2),

1915A; and 42 U.S.C. § 1997e(c)(1); see also Grayson v. Mayview State Hosp., 293 F.3d 103, 108

(3d Cir, 2002). “[A] complaint...is frivolous where it lacks an arguable basis in either law or fact.”

Neitzke v. Williams, 490 U.S. 319, 325 (1989). In determining whether the factual assertions are

clearly baseless, and the complaint is therefore frivolous, a court need not accept its allegations as

| See ECF No. 3, Plaintiffs Motion for Leave to Proceed in forma pauperis. Memorandum Order granting Plaintiff's

Motion for Leave to Proceed in formal pauperis (ECF No. 4).

true. See Denton v. Hernandez, 504 U.S. 25, 33 (1992). ‘Fhe legal standard for dismissing a

complaint under these statutes for failure to state a claim is identical to the legal standard used

when ruling on a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6). See Tourscher

v. McCullough, 184 F.3d 236, 240 (3d Cir. 1999); see also D'Agostino vy. CECOM RDEC, 436

Fed. App’x 70, 72-73 (3d Cir. 2011).

In order to survive a motion to dismiss under Rule 12(b)(6) of the Federal Rules of

Civil Procedure, a complaint, including one filed by a pro se litigant, must include factual

allegations that “state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 US.

662, 678 (2009) (citing Twombly, 550 U.S. at 570). "[W]Jithout some factual allegation in the

complaint, a claimant cannot'satisfy the requirement that he or she provide not only ‘fair notice’

but also the 'grounds' on which the claim rests.” Phillips v. County of Allegheny, 515 F.3d

224, 232 (3d Cir. 2008). In determining whether a plaintiff has met this standard, a court must

reject legal conclusions unsupported by factual allegations, “[t]hreadbare recitals of the

elements of a cause of action, supported by mere conclusory statements”; “labels and

conclusions”; and “naked assertion[s]' devoid of 'further factual enhancement’.” Jgbal, 556

U.S. at 678-79 (citations omitted). Mere “possibilities” of misconduct are insufficient. Id. at

679. Nevertheless, because Plaintiff is proceeding pro se, his allegations, “however inartfully

pleaded,” must be held to “less. stringent standards than formal pleadings drafted by lawyers.”

Haines v. Kerner, 404 U.S. 519, 520-521 (1972). Moreover, under the liberal pleading rules,

during the initial stages of litigation, a district court should construe all. allegations in a complaint

in favor of the complainant.

B. Discussion

Plaintiff complains of various forms of mistreatment that began when he was transferred

from SCI-Fayette to SClI-Houtzdale on June 4, 2020. He begins by stating he filed many

grievances against the Defendants named in his Amended Complaint, ECF No. 39, { 17, and that

some were processed to appeal, and others were not. /d. J 65. He claimed that all Defendants had

a practice of restricting grievances or legal complaints against employees of the Department of

Corrections. Jd. 964. Moreover, Plaintiff states that Defendants acted as a conspiracy in

retaliation for his filing grievances and lawsuits against them. Jd. {J 18, 62.

He states on January 5, 2021, Defendants Proborsky, Vicklund, Hunt, N. Smith,

DeLauretta, and Moyer came to his cell to remove his personal property. Jd. 422. Vicklund

handcuffed and animal tethered him, violently pulling on the tether, and slamming his face against

the wall while the others confiscated his property. /d. Plaintiff asserts his right wrist and elbow

were injured and that he was seen by medical. staff but did not receive treatment. Td. □□□□□

Though he doesn’t state what treatment he required.

Plaintiff describes similar acts by Defendants Porta, Hollis, and Riddle, id. 27-29, and

McDowell, Dyche, Smith, Ivicic, and Close. Jd. §/55-58. He also asserts that Defendants

Hummel and N. Smith slammed Plaintiffs wrist in the aperture while he reached for a meal, id.

{| 37-38; that Defendants Ebersole, Matthews, Pearce, and Gondek committed violent acts against

him causing injury, id. J] 45, 47-49, 52-53; and that he did not receive medical treatment for any

injuries he sustained at the hands of Defendants. Jd. 750. Finally, Plaintiff states Defendant

Warden Smith observed the mistreatment and did nothing. /d. { 32.

Plaintiff complains of frequent and'unnecessary transfers between cells, including transfers

to inhumane cells that were dirty and cold and only contained a-steel bed frame, a sink, and a toilet.

The transfers were at the direction of Defendant Jones and carried out by Defendants Young and

N. Smith. Jd. 99 25-26. On one transfer, Defendants Kurtz and Riddle fondled Plaintiff's buttocks

while Jones watched. Jd. 935. Plaintiff states there was no reason for the transfers because he

was not argumentative or suicidal. Jd. { 30.

Lastly, Plaintiff asserts that Defendant Woomer falsified a misconduct report against

Plaintiff causing him additional time in the Restricted Housing Unit (“RHU”) that caused him to

be without certain amenities. Jd. J 40, 61. Plaintiff claims he was in the RHU for longer periods

of time than appropriate. /d. 961. Plaintiff states that Defendants Wetzel, Bickle, Smith, Ivicic,

Close, James, and Barrows knew of the illegal treatment of Plaintiff, and allowed it. Jd. □□□□

Plaintiffs claims against Defendants are in their individual and official capacities.

Plaintiff makes constitutional and state claims against Defendants: First Amendment

Retaliation for all the illegal acts described; Eighth Amendment Cruel and Unusual Punishment

for the various acts of violence and sexual abuse; Fourteenth Amendment right to due process for

!

preventing the grievance process and obstructing the legal process; Failing to Properly Train,

Supervise and Discipline Employees; and state claims of conspiracy, assault and battery. Jd. at

Section V. He seeks monetary and injunctive relief.

On August 1, 2024, Magistrate Judge Pesto filed a Report and Recommendation (ECF No.

32) recommending Plaintiff's Amended Complaint (ECF No. 30) be dismissed in part for failure

to state a claim, without further leave to amend. Judge Pesto found that only the claim against

Defendant Vicklund for gratuitous force against Plaintiff should go forward. ECF No. 32, p. 3.

He found this claim to be meritorious under Whitley v. Albers, 475 U.S. 312 (1986).

We think the Eighth Amendment, which is specifically concerned with the

unnecessary and wanton infliction of pain in penal institutions, serves as the

primary source of substantive protection to convicted prisoners in cases such as this

one, where the deliberate use of force is challenged as excessive and unjustified. It

would indeed be surprising if, in the context of forceful prison security measures,

“conduct that shocks the conscience” or “afford[s] brutality the cloak of law,” and

so violates the Fourteenth Amendment, Rochin v. California, 342 U.S. 165, 172,

173 (1952), were not also punishment “inconsistent with contemporary standards

of decency” and“ ‘repugnant to the conscience of mankind,’ ” Estelle v. Gamble,

429 U.S. 97, 103 (1976), in violation of the Eighth.

Whitley, 475 U.S. at 327.

Judge Pesto recommended all other claims be dismissed for failure to state a claim, without

leave to amend. The Court of Appeals, in Grayson v. Mayview State Hosp., 293 F.3d 103 (3d Cir.

2002), directs courts to allow plaintiffs.in civil rights cases leave to amend unless that amendment

is “futile” or “inequitable.” Judge Pesto provides several reasons for dismissal for failure to state

a claim beginning with the fact that Plaintiff only asserts conclusory allegations against the

Defendants claiming that they confiscated his things or hurt him but does not plead facts necessary

to support the elements of the claim. As stated above, to survive a 12(b)(6) dismissal Plaintiff

must state more than conclusory allegations even when giving the pro se Plaintiff pleading:

leniency.

Judge Pesto also included other bases to dismiss Plaintiff's claims. including, that

Defendants are entitled to immunity,” the-remedy of injunctive relief is irrelevant,’ all claims have

not been administratively exhausted;* ‘and, what this Court. will focus on, Plaintiffs. Amended

Complaint violates Federal Rule of Civil Procedure 20(a)(2).°

2«“The Eleventh Amendment proscribes actions: for money damages in the federal courts'against states, their agencies,

and state officials acting ih their official capacities. The DOC, and the agents and employees. thereof are entitled to

Eleventh Amendment Immiinity unless ‘exception to such immunity applies. Accordingly, Eleventh Amendment

sovereign immunity applies and shields the DOC Defendants, as‘ Commonwealth employees, from suit in-their official

capacity, so long,as no exception applies.” Brown v. Smith, 2019 WL 2411749, *6(W.D. Pa. June 7, 2019) (citations

omitted).

3 Given that Plaintiff has been transferred to SCI Phoenix, Plaintiff's claiin for injunctive relief is no longer available

regarding imatter at that institution. See Abdul-Akbar v. Watson, 4 F.3d 195, 206 Gd Cir. 1993) (district court could

not provide plaintiff with meaningful injunctive relief regarding a correctional facility in which he was no longer

incarcerated.)

PLRA mandates that an inmate exhaust “such administrative remedies as.are available” before bringing a suit

challenging prison conditions. 42 U.S.C. § 1997e(a). The exhaustion requirement “applies to all inmate suits about

prison life, whether they involve general.circumstances or particular episodes, and whether they allege excessive force

‘or some other wrong.” Porter v. Nussie, 534 U.S. 516, 532 (2002),

3 (a) Persons Who May Join or Be Joined.

Plaintiff was advised he had fourteen days to file objections to the Report and

Recommendation. See 28 U.S.C.§ 636 (b)(1)(B) and (C) and Local Civil Rule 72.D.2. Plaintiff

filed Objections on August 19, 2024 (ECF No. 33).° Plaintiffs Objections amounted to a

reiteration of his assertions in the Amended Complaint and a disagreement with Judge Pesto’s

conclusions. Plaintiff stated, “Hill’s complaint provided enough detail and facts to pass the failure

to state a claim bar.” ECF No. 34, p. 1. Plaintiff addressed none of the bases on which Judge

Pesto found a failure to state a claim.’

Upon review of the record and the Report and Recommendation (ECF No. 32) under the

applicable “reasoned consideration” standard, see EEOC y. City of Long Branch, 866 F.3d 93, 100

(3d Cir. 2017) (standard of review when no timely and specific objections are filed), and under

Local Civil Rule 72.D.2,. the Court will accept in whole the findings and recommendations of

Magistrate Judge Pesto. Magistrate Judge Pesto correctly determined Plaintiff has failed to state

a claim upon which relief can be granted. except as to Defendant Vicklund under the Eighth

Amendment. Equally convincing, Judge Pesto found that Plaintiff's Amended Complaint runs

afoul of the Federal Rules of Civil Procedure.

(2) Defendants, Persons ... may. be joined in one action as defendants if:

(A) any right to relief is asserted against them jointly, severally, or in the alternative with respect to or arising out of

the same transaction, occurrence, or series of transactions or occurrences; and

(B) any question. of law or fact common to all defendants will arise in the action. Fed. R. Civ. P. 20

® Plaintiff filed identical Objections on August 20, 2024 (ECF No. 34).

7 This Court adds there can be no vicarious liability for a supervisor for civil rights violations of the subordinate. A

plaintiff must.plead a defendant’s personal involvement in the alleged deprivation of his constitutional right. See, e.g.,

Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988). Each Defendant is‘ liable only for his or her own conduct.

See, e.g., id; see also Parkell v. Danberg, 833 F.3d 313, 330 (3d Cir. 2016); Barkes v. First Corr. Med., 766 F.3d

307, 316 (3d Cir. 2014) (rev’d sub. nom. on other grounds 575 U.S. 822 (2015)); CN. v. Ridgewood Bad. of Educ.,

430 F.3d 159, 173 (3d Cir. 2005). Further, the doctrine of respondeat- superior, which makes an employer or supervisor

automatically responsible for the wrongdoing of its employees, does not apply under § 1983. See Ashcroft v. Iqbal,

556 U.S. 662, 676 (2009) (“Because vicarious liability is inapplicable to Bivens and § 1983 suits, a plaintiff must

plead that each Government-official defendant, through the official’s own individual actions, has violated the

Constitution.”). For that reason, supervisor-defendants cannot be held liable for every illegal act that takes place in a

correctional facility. They are only liable for their own conduct.

While the Court agrees with Judge Pesto’s substantive bases to dismiss the various claims

made by Plaintiff, it will focus on Federal Rule of Civil Procedure 20 (“Permissive Joinder of

Parties”) as it applies globally to Plaintiff's Amended Complaint. Rule 20 states that defendants

may be joined in one action if any right to relief'is asserted against them jointly, severally or ifthe

arises out of the same transactions or occurrences and any question of law or fact is common

to all defendants. Here, Plaintiff has provided a series of unrelated occurrences (as many as

thirteen different scenarios) that occurred with a laundry list of thirty-seven defendants (22 have

been terminated since the. original Complaint). The occurrences may have factual similarities or

call for the same. legal claim, but are wholly unrelated to one another and Plaintiff provides no

unifying factual or legal nexus except to make an unsupported allegation that Defendants conspired

to mistreat him for retaliatory purposes because he filed grievances and litigation against the

poc’$

Rather than dismissing Plaintiffs: Amended Complaint, the Court will allow the claim to °

go forward as to Defendant Vicklund for his actions on January 5, 2021. Magistrate J udge Pesto .

found the claim against Defendant Vickland to be plausible. The facts of the claim recited in

paragraphs 19-24 of the Amended Complaint (ECF No. 30) are that on January 5, 2021,.Defendant

Proborsky said he was taking Plaintiffs property. ECF No. 30, 4.19. Defendant DeLaretta hand-

cuffed Plaintiff behind his back and attached an animal tether. Plaintiff was removed from the cell

8 A prisoner asserting a retaliation claim must allege facts showing that (1) he engaged in constitutionally protected

conduct; (2) prison officials took an adverse action against the plaintiff that was “sufficient to deter a person of

ordinary firmness’ from exercising his ‘[constitutional] rights”; and’ (3) the existence of “a causal link between the

exercise of his constitutional rights:and the adverse.action taken against him.” See Rauser v. Horn, 241 F.3d 330, 333

(3d Cir. 2001) (quoting Allah, 229 F.3d at 225) (alteration in original), Mitchell v. Horn, 318 F.3d 523, 530 Gd Cir.

2003). Plaintiffs only factual assertion of a causal link was on March 22, 2021, Defendant Porta wouldn’t quit

banging on Plaintiffs door. Porta said, “I’m taking your property — won’t be litigating against us.” ECF No. 30, 9.27.

Plaintiff said,,“Porta had Hill’s clothing; hygienic products; personal property; legal/non-legal material, and bedding

material confiscated without penological justification.” Jd. ] 29. This may be construed as a retaliatory remark, but

‘this claim must be made in a separate case because it doesn’t adhere to FRCP'20.

by Vickhind and'N. Smith. Defendants Moyer, Hunt, and DeLaretta confiscated Plaintiff's legal

and non-legal material, hygienic products, personal property, and bedding material. Jd. □□ 22.

During this time, Vickund was pulling on the tether and, slamming Plaintiff's face against the wall.

Id. 23. Vicklund injured Plaintift stight wrist and elbow. Jd. Plaintiff didnot provoke Vicklund.

Plaintiff was seen by medical staff but not treated. Jd. {| 24.

. Plaintiff has provided sufficient factual allegations against Vicklund for an Eighth

Amendment cruel and unusual punishment-claim. As to Defendants Porborsky, Hunt, N. Smith,

DeLauretta, and Moyer he.has not provided any factual support fora retaliation claim (see in 8),

or a Fourteenth Amendment due process claim. There is no viable Fourteenth Amendment claim

. of deprivation of property without due process because Plaintiff had meaningful post-deprivation

remedies for the loss available to him. See Hudson v. Palmer, 468 U.S. 517, 533 (1984) (“[A]n

unauthorized intentional deprivation of property by a state employee does not constitute 4 violation

of the procedural requirements of the Due Process Clause of the Fourteenth Amendment if a

. meaningful post-deprivation remedy ‘for the loss is. available.”). Plaintiff had the right to file a

grievance through the prison administrative process or to file.a conversion and replevin action in

state court. Plaintiff states he is familiar with these processes because he has. “filed many

institutional grievances against Defendants....” ECF No. 30, § 17.

Using Judge Pesto’s guidance, nothing prohibits Plaintiff from filing separate complaints

alleging his;new post-January 14,2021, claims. ECF No. 32, p. 5. Each claim must be supported

with specific allegations as to each defendant satisfying the elements of the claim. Granting further

amendment as to the dismissed claims is “futile” and “inequitable” and would waste judicial

resources. Jd.

Accordingly, the following order is entered:

ORDER

AND NOW, this 9" day of September, 2024, IT IS ORDERED that Magistrate Judge

Pesto’s Report and Recommendation (ECF No. 32) is adopted in whole as the Opinion of the Court

and Plaintiff's Objections (ECF No. 34) are overruled, and;

IT IS FURTHER ORDERED that Plaintiffs Eighth Amendment claim against Defendant

Vicklund may go forward; and

IT IS FURTHER ORDERED that all other claims in Plaintiff's Amended Complaint (ECF

No. 30), are dismissed with prejudice.

Neh L. Haines

United States District Judge

cc: Lavond A. Hill

GC8778

SCI-Phoenix

1200 Mokychic Drive

Collegeville, PA 19426