R.S. Shick v. M.R. Clark, Superintendent

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Russell Scott Shick, :

Petitioner :

:

v. : No. 608 M.D. 2016

: Submitted: July 20, 2018

Michael R. Clark, Superintendent, :

individually and collaterally, Melinda :

L. Adams, Deputy Superintendent, :

individually and collaterally, :

Carl Franz, Deputy Superintendent, :

individually and collaterally, Michelle :

Tharp, Grievance Coordinator, :

individually and collaterally, Roni :

Martucci, former Grievance Coordinator,:

individually and collaterally, Diana :

Woodside, Director of Policy and :

Legislation, individually and collaterally,:

Christine Zirkle, former CHCA, :

individually and collaterally, Michael :

Edwards, CHCA, individually and :

collaterally, Valerie Kusiak, former :

CHCA, individually and collaterally, :

Lisa Linder, R.N.S., individually :

and collaterally, :

Respondents :

BEFORE: HONORABLE P. KEVIN BROBSON, Judge

HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION

BY JUDGE BROBSON FILED: February 21, 2019

Before the Court in our original jurisdiction are the preliminary

objections of Respondents in this action, who are employees of the Commonwealth

of Pennsylvania, Department of Corrections (Department), to a Complaint in Civil

Action for Constitutional Rights Violations (Complaint) filed by Russell Scott Shick

(Shick).1 For the reasons that follow, we sustain Respondents’ preliminary

objections based on lack of sufficiency of pleading and failure to state a claim upon

which relief may be granted, and we dismiss Shick’s Complaint with prejudice.

In the Complaint, Shick baldly challenges the constitutionality of the

Department’s grievance procedure and seeks: (1) monetary relief; (2) the removal

of Respondents from their positions; (3) declaratory relief in the form of this Court

holding that Department policy DC-ADM 804 is unconstitutional; and (4) relief in

the form of this Court directing the Department to replace DC-ADM 804 with a new

grievance policy. Shick asserts that DC-ADM 804 is unconstitutional, arguing that

it “supplants” both state and federal laws.2 (Complaint ¶ N.) The actual causes of

1

While Shick titled his initial filing as a “Complaint in Civil Action for Constitutional

Rights Violations,” he should have filed a petition for review in our original jurisdiction, as a

petition or review is the pleading utilized to commence an action against the Commonwealth and

its officers pursuant to Chapter 15 of the Pennsylvania Rules of Appellate Procedure. For ease of

reference, however, we will continue to refer to Shick’s filing as the Complaint.

The caption of the Complaint named the following Department employees: (1) Michael

R. Clark (Clark); (2) Melinda L. Adams (Adams); (3) Carl Franz (Franz); (4) Michelle Tharp

(Tharp); (5) Roni Martucci (Martucci); (6) Diana Woodside (Woodside); (7) Christine Zirkle

(Zirkle); (8) Michael Edwards (Edwards); (9) Valerie Kusiak (Kusiak); and (10) Lisa Linder

(Linder). The Complaint, however, only includes averments against Clark, Adams, Tharp,

Martucci, and Franz. Beyond the Department employees listed above, the Complaint also

mentions two other Department employees not listed in the caption: (1) Karla Webb (Webb); and

(2) John Tiller (Tiller).

2

We note that Shick fails to identify any state or federal laws purportedly violated by the

implementation and continued use of DC-ADM 804, with the exception of a reference to 18 U.S.C.

§ 241 (pertaining to conspiracy against rights) and 18 U.S.C. § 242 (pertaining to deprivation of

2

action that Shick attempts to assert, however, are unclear. Shick may be attempting

to assert a cause of action under 42 U.S.C. § 1983,3 as he seeks monetary damages

and asserts that Respondents have committed constitutional/civil rights violations

through their continued enforcement of this purportedly unconstitutional policy.

(Id. ¶ O.) Shick also may be attempting to assert a cause of action seeking

declaratory judgment that the Department’s grievance system is unconstitutional and

requesting injunctive relief.

Regardless of the exact causes of action asserted, Respondents filed

preliminary objections, averring: (1) this Court lacks jurisdiction to review Shick’s

challenge to DC-ADM 804; (2) Shick’s claims against Respondents are barred by

rights under color of state law). (Complaint ¶ Q.) Although Shick references those two statutory

provisions, he does not explain how those provisions are relevant.

3

42 U.S.C. § 1983, provides:

Every person who, under color of any statute, ordinance, regulation, custom, or

usage, of any State or Territory . . . subjects, or causes to be subjected, any citizen

of the United States or other person within the jurisdiction thereof to the deprivation

of any rights, privileges, or immunities secured by the Constitution and laws, shall

be liable to the party injured in an action at law, suit in equity, or other proper

proceeding for redress . . . .

Section 1983 provides a civil remedy for deprivations of federally protected rights caused by

persons acting under color of state law. Parratt v. Taylor, 451 U.S. 527, 535 (1981), overruled in

part on other grounds by Daniels v. Williams, 474 U.S. 327 (1986). In order to state a claim under

Section 1983, a plaintiff must (1) allege a violation of rights secured by the United States

Constitution or the laws of the United States, and (2) show the alleged deprivation was committed

by a person acting under the color of state law. Owens v. Shannon, 808 A.2d 607, 609 n.6 (Pa.

Cmwlth. 2002). Courts cannot impose supervisory liability in Section 1983 cases solely on a

theory of respondeat superior. Watkins v. Pa. Dep’t of Corr., 196 A.3d 272, 276 (Pa.

Cmwlth. 2018). To prevail in a Section 1983 suit against a supervisory official, a plaintiff must

demonstrate the supervising defendant had personal involvement in the alleged wrongs. Ashcroft

v. Iqbal, 556 U.S. 662, 676 (2009). Personal involvement can be pleaded “through allegations of

personal direction or of actual knowledge and acquiescence.” Rode v. Dellarciprete,

845 F.2d 1195, 1207 (3d Cir. 1988). “Allegations of participation or actual knowledge and

acquiescence, however, must be made with appropriate particularity.” Id.

3

sovereign immunity; (3) Shick failed to state a claim upon which relief may be

granted, because he did not sufficiently plead Respondents’ personal involvement in

any wrongdoings; (4) Shick does not have a clear right to the requested relief;

and (5) Shick has failed to state a claim under 42 U.S.C. § 1983.

In ruling on preliminary objections, we accept as true all well-pleaded

material allegations in the petition for review and any reasonable inferences that we

may draw from the averments. Meier v. Maleski, 648 A.2d 595, 600 (Pa.

Cmwlth. 1994). The Court, however, is not bound by legal conclusions,

unwarranted inferences from facts, argumentative allegations, or expressions of

opinion encompassed in the petition for review. Id. We may sustain preliminary

objections only when the law makes clear that the petitioner cannot succeed on the

claim, and we must resolve any doubt in favor of the petitioner. Id. “We review

preliminary objections in the nature of a demurrer under the above guidelines and

may sustain a demurrer only when a petitioner has failed to state a claim for which

relief may be granted.” Armstrong Cty. Mem’l Hosp. v. Dep’t of Pub. Welfare,

67 A.3d 160, 170 (Pa. Cmwlth. 2013).

With the above standard in mind, we accept as true the following

allegations from the Complaint. Shick is an inmate incarcerated at the State

Correctional Institution at Albion (SCI-Albion), and Respondents are employees of

the same. (Complaint ¶¶ A-H.) SCI-Albion has a grievance procedure outlined in

Department policy DC-ADM 804.4 (Id. ¶ J.) This policy provides inmates “a formal

4

We take judicial notice of Department policy DC-ADM 804, which appears on the

Department’s official website at:

https://www.cor.pa.gov/About%20Us/Documents/DOC%20Policies/804%20Inm

ate%20Grievances.pdf.

(last visited Feb. 11, 2019). See Figueroa v. Pa. Bd. of Prob. & Parole, 900 A.2d 949, 950 n.1

(Pa. Cmwlth. 2006) (taking judicial notice of information found on Department website).

4

procedure through which to seek resolution of problems or other issues of concern

arising during the course of confinement.” (DC-ADM 804, Section III.)

Respondents have, in some capacity, enforced this policy during Shick’s time at

SCI-Albion. (Complaint ¶ M.)

Given the glaringly undeveloped nature of the claims set forth in

Shick’s Complaint, we begin with consideration of Respondents’ preliminary

objections on the bases of lack of sufficiency of pleading and failure to state a claim

upon which relief may be granted. Respondents argue that Shick failed to state a

claim upon which relief may be granted, because he did not sufficiently plead

personal involvement on the parts of Respondents. With respect to Tharp, Martucci,

Webb, and Tiller, Respondents argue that the Complaint fails to aver sufficient facts

to show that any one of them played an affirmative part in the alleged deprivation of

Shick’s civil rights or other wrongful acts. With respect to Woodside, Zirkle,

Edwards, Kusiak, and Linder, Respondents argue that the Complaint fails to aver

any facts against them to establish their personal involvement in the alleged civil

rights violations or other wrongful acts, as their names only appear in the caption of

the Complaint and not the body. Respondents argue that, although the Complaint

alleges liability for Clark, Adams, and Franz under the doctrine of respondeat

superior only, it similarly fails to aver any facts to support such liability.

Our review of the Complaint reveals that, in addition to not clearly

setting forth any cause(s) of action that Shick seeks to pursue, the Complaint fails to

specify any wrongdoing perpetrated upon Shick by Respondents, let alone allege

any acts or omissions on the parts of Respondents, whether individually or as

supervisors, that resulted in a violation of Shick’s rights. The Complaint is simply

devoid of any averments of personal or supervisory involvement by Respondents,

5

except that Tharp, Martucci, Webb, or Tiller have “participated at some level” in

Shick utilizing DC-ADM 804 and that Clark, Adams, and Franz are “guilty of . . .

civil rights violations . . . as respondeats superior.” (Id. ¶¶ M, R.) Shick fails to

allege any specific acts on the parts of Respondents that, if accepted as true, would

establish their liability or entitle Shick to the relief which he seeks. Simply put,

Shick’s Complaint is conclusory, and it sets forth nothing but bald and

unsubstantiated assertions that the Department’s grievance system is

unconstitutional and that Respondents have committed unspecified civil rights

violations. For these reasons, we agree with Respondents that Shick’s Complaint is

deficient based on lack of sufficiency of pleading and failure to state a claim upon

which relief may be granted. As a result, we will not address the remaining

preliminary objections.

Accordingly, Respondents’ preliminary objections are sustained, and

Shick’s Complaint is dismissed with prejudice.5

P. KEVIN BROBSON, Judge

5

We note that we are dismissing the Complaint instead of providing Shick an opportunity

to amend because this Court has previously provided Shick multiple opportunities to file an

amended complaint in this matter. On January 13, 2017, Shick filed a motion for leave to file an

amended complaint, which this Court granted by order dated January 23, 2017. In so doing, we

ordered that Shick file his amended complaint within thirty days of the order. Shick failed to file

an amended complaint and, by order dated March 7, 2017, we ordered Respondents to respond to

the Complaint. Thereafter, Shick sought an extension of time in which to file an amended

complaint, which this Court granted by order dated March 30, 2017. In so doing, we directed

Shick to file his amended complaint by April 12, 2017. Shick, again, failed to file an amended

complaint. By order dated May 2, 2017, we again directed Respondents to respond to the

Complaint.

6

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Russell Scott Shick, :

Petitioner :

:

v. : No. 608 M.D. 2016

:

Michael R. Clark, Superintendent, :

individually and collaterally, Melinda :

L. Adams, Deputy Superintendent, :

individually and collaterally, :

Carl Franz, Deputy Superintendent, :

individually and collaterally, Michelle :

Tharp, Grievance Coordinator, :

individually and collaterally, Roni :

Martucci, former Grievance Coordinator,:

individually and collaterally, Diana :

Woodside, Director of Policy and :

Legislation, individually and collaterally,:

Christine Zirkle, former CHCA, :

individually and collaterally, Michael :

Edwards, CHCA, individually and :

collaterally, Valerie Kusiak, former :

CHCA, individually and collaterally, :

Lisa Linder, R.N.S., individually :

and collaterally, :

Respondents :

ORDER

AND NOW, this 21st day of February, 2019, Respondents’ preliminary

objections (based on lack of specificity of pleading and failure to state a claim upon

which relief may be granted) to the Complaint in Civil Action for Constitutional

Rights Violations (Complaint) filed by Russell Scott Shick are SUSTAINED, and

the Complaint is DISMISSED with prejudice.

P. KEVIN BROBSON, Judge