Ross v. Parole Board in Probation et al

Filing 32

MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that: 1)Pltf's 29 MOTION to Strike the 19 MOTION to Dismiss is construed to be a supplement to Pltf's bropp. 2)Dft's Motion to Dismiss is GRANTED. 3)W/i 14 days, pltf shall file an amdcmplt. 5)Pltf's 14 MOTION for Summary Judgment is DENIED AS MOOT. Signed by Chief Judge Yvette Kane on Sept. 7, 2011. SEE MEMORANDUM AND ORDER.(sc)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

GLENN BEDFORD ROSS,
Plaintiff,
v.
PENNSYLVANIA BOARD OF
PROBATION AND PAROLE, et al.,
Defendants

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CIVIL NO. 1:CV-10-0926
(Chief Judge Kane)

MEMORANDUM
Glenn Bedford Ross, at the time an inmate at the State Correctional Institution at
Rockview (SCI-Rockview), Pennsylvania, filed this civil rights action pursuant to 42 U.S.C.
§ 1983. Named as Defendants are the Pennsylvania Board of Probation and Parole, Parole Board
Chairwoman Catherine McVey, Parole Agent Chad Ishler and Cynthia L. Daub, Deputy
Executive Director for the Parole Board. Also named as Defendants are the following
employees of SCI-Rockview: David Durst and Bethanne Burkholder, psychological services
associates; Billie Jo Rupert, Unit Manager; and Samuel L. Condo, a corrections counselor.
Presently pending is Defendants’ motion to dismiss the complaint (Doc. No. 19). Also before
the Court are Plaintiff’s motion for summary judgment (Doc. No. 14) and motion to strike
Defendants’ motion to dismiss (Doc. No. 29).1 For the reasons that follow, Defendants’ motion
to dismiss will be granted. Plaintiff will be afforded an opportunity to submit an amended
complaint in this action.

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Plaintiff’s motion to strike (Doc. No. 29) will be construed to be a supplement to his
brief in opposition to Defendants’ motion to dismiss the complaint. The Clerk of Court will be
directed to make the appropriate correction to the docket. Further, based upon the Court’s
resolution of the pending motion to dismiss, Plaintiff’s motion for summary judgment (Doc. No.
14) will be denied as premature. The Court also notes that the motion could be deemed
withdrawn for failure to file a supporting brief in accordance with M.D. Pa. Local Rule 7.5.

I.

Allegations in the Complaint
The complaint submitted by Plaintiff is less than clear. While the Statement of Claim

section is less than two (2) pages in length, it is mostly illegible and disjointed. (Doc. No. 1,
Compl. at 3-4.) While it is difficult to say, it seems that Plaintiff may be attempting to set forth
claims against the Parole Board defendants with respect to a recommendation made that he
participate in sex therapy. The facts surrounding this claim are unclear and sparse. It appears
that Plaintiff is currently incarcerated on charges of gun possession, and that it has been
recommended that he complete sex therapy at the prison. It is unclear as to whether the Parole
Board has made this recommendation for the purposes of parole consideration or whether sex
therapy has been recommended internally as part of Plaintiff’s correctional program plan. The
allegations are also unclear with respect to an earlier conviction Plaintiff mentions that he may
have had involving the corruption of minors, and upon which the sex therapy recommendation
seems to be based. While some of the Defendants are mentioned by name in the complaint, the
allegations associated with them make little sense.
In addition to the foregoing, the complaint also references Plaintiff being fired from his
prison job and removed from welding school. He also generally alleges that he was denied
medical attention. Facts with respect to these allegations are lacking. Further, Plaintiff fails to
associate any particular defendant or period of time with these claims. At one point, Plaintiff
also seeks his release from prison. Plaintiff would like declaratory relief in the nature of a
recognition by the Court that “they are violating and abusing their authority by telling the jail to
harass him.” (Id. at 2.) Further, he requests medical treatment and to be allowed to go home.

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II.

Motion to Dismiss Standard
On a motion to dismiss, this Court must “accept all factual allegations as true, construe

the complaint in the light most favorable to the [plaintiff], and determine whether, under any
reasonable reading of the complaint, the [plaintiff] may be entitled to relief.” Kerchner v.
Obama, 612 F.3d 204, 207 (3d Cir. 2010) (quoted case omitted). A complaint must contain a
“short and plain statement of the claim showing that the pleader is entitled to relief,” Fed. .R.
Civ. P. 8(a)(2), giving the defendant “fair notice of what the ... claim is and the grounds upon
which it rests.” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (quoting Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555 (2007)). Although detailed factual allegations are not required,
Twombly, 550 U.S. at 93, the complaint must plead “enough facts to state a claim to relief that is
plausible on its face.” Id. at 570; see also Santiago v. Warminster Twp., 629 F.3d 121, 128 (3d
Cir. 2010). “The plausibility standard is not akin to a ‘probability requirement,’ but it asks for
more than a sheer possibility that a defendant has acted unlawfully.” Ashcroft v. Iqbal, ___ U.S.
___, ___, 129 S. Ct. 1937, 1949, 173 L. Ed. 2d 868 (2009) (quoting Twombly, 550 U.S. at 556).
“[L]abels and conclusions” are not enough, Twombly, 550 U.S. at 555, and a court “‘is not
bound to accept as true a legal conclusion couched as a factual allegation.’” Id., 127 S. Ct. at
1965 (quoted case omitted).
However, courts are cautioned that because of this liberal pleading standard, a plaintiff
should generally be granted leave to amend before dismissing a claim that is merely deficient.
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). The federal rules allow for liberal amendments in light of the
“principle that the purpose of pleading is to facilitate a proper decision on the merits.” Foman v.

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Davis, 371 U.S. 178, 182 (1962) (citations and internal quotations omitted). However, leave to
amend under Rule 15 may be denied in cases of (1) undue delay; (2) bad faith or dilatory motive;
(3) undue prejudice; or (4) futility of amendment. See Foman, 371 U.S. at 182; see also Arthur
v. Maersk, Inc., 434 F.3d 196, 204-05 (3d Cir. 2006) (stating that “leave to amend must
generally be granted unless equitable considerations render it otherwise unjust”); see also Long
v. Wilson, 393 F.3d 390, 400 (3d Cir. 2004) (stating “absent undue or substantial prejudice, an
amendment should be allowed under Rule 15(a) unless denial can be grounded in bad faith or
dilatory motive, truly undue or unexplained delay, repeated failure to cure deficiency by
amendments previously allowed or futility of amendment”) (citations and internal quotation
marks omitted); Alvin v. Suzuki, 227 F.3d 107, 121 (3d Cir. 2000) (summarizing factors to
consider under Rule 15).
III.

Discussion
Defendants have filed a motion to dismiss the complaint and in support thereof cite to the

confusing and, at times, totally illegible nature of Plaintiff’s submission. They maintain that the
pleading fails to meet the “short and plain statement” requirement of Fed. R. Civ. P. 8(a) due to
this fact. They argue that based upon the complaint, as submitted, there are no facts alleged to
state a claim for relief that is plausible on its face. While he does complain about being
recommended for sex therapy and also about losing his prison job, neither of these claims
contain facts showing that such actions, even if true, violate federal law. With respect to the
inadequate medical care claim set forth, there are no facts in the complaint which show that any
named Defendant was deliberately indifferent to a serious medical need. Defendants also argue
that any claims set forth against the Pennsylvania Board of Probation and Parole are barred by

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the Eleventh Amendment. Both of Defendants’ arguments are well-taken.
First, a § 1983 action brought against a “State and its Board of Corrections is barred by
the Eleventh Amendment unless [the State] has consented to the filing of such a suit.” Alabama
v. Pugh, 438 U.S. 781, 782 (1978). It has been similarly determined by our Court of Appeals for
the Third Circuit that the Pennsylvania Board of Probation and Parole cold not be sued because
“it is not a ‘person’ within the meaning of Section 1983.” Thompson v. Burke, 556 F.2d 231,
232 (3d Cir. 1977).
The United States Supreme Court in Will v. Michigan Dep’t of State Police, 491 U.S. 58
(1989), again concluded that state agencies are not “persons” subject to liability in § 1983
actions brought in federal court. The Supreme Court observed that a § 1983 suit against a state
official’s office was “no different from a suit against the State itself.” Id. at 71. “Will
establishes that the State and arms of the State, which have traditionally enjoyed Eleventh
Amendment immunity, are not subject to suit under § 1983 in either federal or state court.”
Howlett v. Rose, 496 U.S. 356 (1990).
Accordingly, since the Pennsylvania Board is clearly an agency or arm of the
Commonwealth of Pennsylvania, it is not a person and may not be sued under § 1983. See
Thompkins v Doe, No. 99-3941, slip op. at 3 (3d Cir. March 16, 2000) (a state prison and a
department within the prison are not persons and may not be sued under § 1983).
The Court further agrees with Defendants that in its present form, the complaint is
subject to dismissal in that it fails to meet the requirements of Fed. R. Civ. P. 8(a)(2), as well as
the requirements of Twombly and Iqbal. In addition, it may even violate Fed. R. Civ. P. 20
which provides, in pertinent part, as follows:

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(A) Permissive Joinder. “All persons may ... be joined in one
action as defendants if there is asserted against them jointly,
severally, or in the alternative, any right to relief in respect of or
arising out of the same transaction, occurrence, or series of
transactions or occurrences and if any question of law or fact
common to all defendants will arise in the action. A plaintiff or
defendant need not be interested in obtaining or defending against
all the relief demanded. Judgement may be given against ... one or
more of the defendants according to their respective abilities.
Fed. R. Civ. P. 20(a).
The complaint does not provide facts giving Defendants notice as to the grounds of relief
being pursued. Further, it fails to associate claims with particular Defendants. The unintelligible
nature of the pleading filed by Plaintiff, complicated by the complete lack of punctuation, makes
comprehension of the complaint even more difficult. It has been found that when a complaint of
this nature is filed, an order dismissing it under Rule 8 is entirely appropriate. See Rhett v. New
Jersey State Superior Court, 260 F. App’x 513 (3d Cir. 2008). For these reasons, Defendants’
motion to dismiss will be granted.
However, as is correctly recognized by Defendants, Plaintiff must be provided with an
opportunity to submit an amended complaint in this action attempting to state actionable § 1983
claims against properly named defendants in accordance with the above discussion. He will be
afforded fourteen (14) days within which to do so. In preparing an amended complaint Plaintiff
is advised that he must comply with Fed. R. Civ. P. 8, and set forth at least a modicum of factual
specificity, identifying the defendants and the particular conduct of the defendants purported to
have harmed him. The “amended complaint must be complete in all respects. It must be a new
pleading which stands by itself as an adequate complaint without reference to the complaint
already filed.” Young v. Keohane, 809 F. Supp. 1185, 1198 (M.D. Pa. 1992). Further, Plaintiff

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is cautioned that the amended complaint must comply with Rule 20 and involve only related
claims or parties. An appropriate order follows.

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IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

GLENN BEDFORD ROSS,
Plaintiff,
v.
PENNSYLVANIA BOARD OF
PROBATION AND PAROLE, et al.,
Defendants

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CIVIL NO. 1:CV-10-0926
(Chief Judge Kane)

ORDER

AND NOW, THIS

7th

DAY OF September, 2011, in accordance with the

foregoing Memorandum, IT IS HEREBY ORDERED AS FOLLOWS:
1.

Plaintiff’s Motion to Strike Defendants’ Motion to Dismiss (Doc. No. 29) is
construed to be a supplement to Plaintiff’s brief in opposition to Defendants’
motion to dismiss. The Clerk of Court is directed to make the appropriate
correction to the docket and terminate this filing as a motion.

2.

Defendants’ Motion to Dismiss the Complaint (Doc. No. 19) is granted.

3.

Within fourteen (14) days Plaintiff shall file an amended complaint in accordance
with the accompanying Memorandum. The amended complaint shall contain the
same caption and civil case number that are already assigned to this action and
shall stand alone without reference to any other document filed in this matter.

4.

The failure to file an amended complaint within the specified time period will
result in the dismissal of this action.

5.

Plaintiff’s motion for summary judgment (Doc. No. 14) is denied as moot.

S/ Yvette Kane_____________
YVETTE KANE, Chief Judge
Middle District of Pennsylvania