Bush et al v. Rendell et al

Filing 186

MEMORANDUM AND ORDER: 1) The court adopts the r and r of MJ Mannion 173 .2) The County Dfts mtn to dismiss 68 is GRANTED.3) The Commonwealth Dfts mtn to dismiss 70 is GRANTED.4) Pltfs mtns for a tro/pi 53 , for mandatory injunctions 113 , to compel 131 , and for a tro 147 are DENIED AS MOOT.5) The Clerk of Court shall close this file.6) Any appeal from this order will be deemed frivolous and not taken ingood faith.Signed by Honorable Sylvia H. Rambo on 04/10/12 (ma, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
FELDON BUSH, SR.; JAMES HILL; :
and ANTHONY ALLEN,
:
:
Plaintiff
:
:
v.
:
:
ED RENDELL, GOVERNOR, et al., :
:
Defendants
:

CIVIL NO. 1:10-CV-2246
(Judge Rambo)
(Magistrate Judge Mannion)

MEMORANDUM
I.

Background
The plaintiffs commenced this civil rights action by filing a complaint

on November 1, 2010. (Doc. No. 1). On December 27, 2010, the plaintiffs filed their
first amended complaint, (Doc. No. 25), and on April 25, 2011, the plaintiffs filed a
motion for a temporary restraining order/preliminary injunction (“TRO/PI”), (Doc.
No. 53). On May 11, 2011, the magistrate judge to whom this matter was referred
issued a Report and Recommendation that recommended the plaintiffs’ motion for a
TRO/PI be denied because (1) the relief sought by the plaintiffs was based on alleged
past violations and there was no indication that there was a present threat of harm,
and (2) the acts the TRO/PI sought to enjoin were not committed by any of the
named defendants. (Doc. No. 59). After the issuance of that Report and
Recommendation, the plaintiffs filed a motion for reconsideration of the Report and
Recommendation which this court deemed as objections to the Report and
Recommendation. See (Doc. No. 64) & (Doc. No. 92). In the objections to the
Report and Recommendation, the plaintiffs asserted that mail to this court was

intercepted by correctional facility employees and sent back to plaintiffs, and that a
court order sent to plaintiffs was opened by the warden. (Doc. No. 64). Based on
that information, this court found that the mail tampering claim was ongoing and
appeared to be a hindrance to plaintiffs’ access to this court. (Doc. No. 92).
Accordingly, on June 21, 2011, the court issued an ordered that stated:
b) The recommendation that the motion for a temporary
restraining order and preliminary injunction be denied is
accepted in part. The recommendation is not accepted at
this time as to the allegations of prison officials interfering
with Plaintiffs’ mailings to this court and disposition of the
motion is deferred pending further order of court.
2) No later than July 6, 2011, Plaintiff Bush shall supply to
this court the names of the prison officials allegedly
interfering with his mail. To the extent that these persons
are not named defendants in the present action, Plaintiff
Bush shall file an amended complaint.
(Doc. No. 92 at 2).
Consequently, on June 30, 2011, the plaintiffs filed their second
amended complaint, (Doc. No. 96). A review of that amended complaint revealed
that plaintiff Bush had asserted claims against defendants Prime Care Medical, Inc.,
Nurse Dawn, Nurse Mary Ann, Lieutenant Flasher, Lieutenant Gordon and Mail
Inspector Correctional Officer Calhoun. Id. More specifically, the plaintiff had
brought claims regarding the interference with his mail against defendants Flasher,
Gordon and Calhoun; claims regarding the medical care he had received against
defendants Prime Care Medical, Inc., Nurse Dawn and Nurse Mary Ann; and
retaliation claims against defendant Flasher. Id.
The magistrate judge found that “to the extent Plaintiff Bush had
alleged any new claims against any newly added defendants that did not relate to his
claims regarding interference with his mail, those newly added claims were
improper.” (Doc. No. 123.) These newly added claims regarded his medical
2

treatment and retaliation. The magistrate judge also noted that Plaintiff Bush’s
amended complaint had omitted the claims that were raised in the first amended
complaint. (Doc. No. 25.) The magistrate judge directed the plaintiffs to file a third
amended complaint by September 20, 2011 that contained (1) the claims the
plaintiffs still wished to pursue that were raised in the first amended complaint (Doc.
25), and (2) Plaintiff Bush’s claims regarding interference with his mail.
Accordingly, on September 16, 2011, the plaintiffs filed their third
amended complaint. (Doc. 128.) In the third amended complaint, the plaintiffs
indicate that:
[T]he court misconstrued the plaintiffs’ second amended
complaint. It was not intended to remove the original
defendants from this suit. The second amended complaint
was only meant to be an add on to those claims that were
already filed in the first well-pleaded amended complaint.
Plaintiffs wish for this court to consider all claims
already raised in the first original amended complaint with
all of the evidence submitted by the plaintiffs . . . .
Plaintiffs respectfully request this court to reinstate the first
original amended complaint and all claims raised therein.
As concerning the other defendants [that were newly added
in the second amended complaint,] Lt. Flasher, Lt. Gordon,
C/O Caloun, Prime Medical Care Inc., Nurse Dawn, and
Nurse Lee Ann, the plaintiffs’ will file a new complaint
against those defendants.
(Id. at 3-4 (emphasis in original).)
As a result of the foregoing, the first amended complaint (Doc. 25) was
deemed to be the operative complaint. (Doc. 128.)1 The County and Commonwealth
defendants filed motions to dismiss. The report and recommendation of the
magistrate judge (Doc. 173) recommended that the motions to dismiss (Docs. 68 &
70) be granted; and the plaintiffs’ motions for a temporary restraining

1

The mail tampering claim was pursued in a separate action. See No. 1:11-CV-1738.
3

order/preliminary injunction (Doc. 53), for mandatory injunctions (Doc. 113), to
compel (Doc. 131), and for a temporary restraining order (Doc. 147) be denied as
moot.
On January 4, 2012, Plaintiff Allen filed a response and opposition to
the report and recommendation (Docs. 176 & 177). On January 23, 2012, Allen filed
a request to withdraw his response to the report and recommendation and stated his
desire to file an appeal. (Doc. 180.) On January 6, 2012, and February 15, 2012,
Plaintiff Bush filed Notices of Appeal. (Docs. 178 & 182.) Bush did not file
objections to the report and recommendation. By order dated February 24, 2012
(Doc. 183), this court ordered that the notices of appeal be stricken and that Bush file
objections to the report and recommendation by March 12, 2012. Bush filed
objections on March 16, 2012 (Doc. 185). The objections of Plaintiffs Bush and
Allen will be addressed.

II.

Discussion
A. Allegations in Amended Complaint
The gravamen of the plaintiffs’ allegations is that there was a due

process violation when they were transferred from a state correctional facility to a
county jail. As a result of that transfer, the plaintiffs raised issues on behalf of state
inmates for violations of First, Eighth and Fourteenth Amendment claims concerning
conditions of confinement. Plaintiffs allege an Eighth Amendment claim concerning
lack of medical care and a the Fourteenth Amendment equal protection claim,

4

alleging that the Department of Corrections treats inmates housed at county
correctional facilities differently from other state inmates.2
B. The Magistrate Judge’s Recommendations
The magistrate judge recommended that the Commonwealth and County
defendants were entitled to immunity insofar as they are sued in their official
capacities. He also recommended that Centre County be dismissed in that there was
no showing of a policy or custom by the county that caused a constitutional
violation.
The magistrate judge further recommended that the due process claim
be dismissed based on the fact that an inmate has no constitutional right to placement
in any particular correctional institution. See Olim v. Wakinekona, 461 U.S. 238, 251
(1983); Jerry v. Williamson, 211 Fed. Appx. 110, 112 (3d Cir. 2006) (citing 37 Pa.
Code § 93.11(a)). Furthermore, 61 Pa. Cons. Stat. § 1151(a) specifically states that
“[t]he Secretary or his designee may transfer inmates in the State correctional
institution system to the jurisdiction of a county correctional institution system upon
such terms and conditions that the Secretary or his designee and the chief
administrator of the county correctional institution determine to be in the best
interests of the Commonwealth.”
The magistrate judge also recommended that the First, Eighth, and
Fourteenth Amendment claims which were brought on behalf of state inmates be
dismissed because the plaintiffs lacked standing to raise these challenges, (see
footnote 2), and that Bush’s Eighth Amendment claim of denial for dental care be
dismissed because Bush did not show that any medical care defendant was
2

The magistrate judge found that the plaintiffs lacked standing to raise claims on behalf of
other inmates. Allen v. Passiac County Jail, No. 09-0408, 2009 U.S. Dist. LEXIS 1133560 at *10-11
(E.D. Pa., Dec. 4, 2009).
5

deliberately indifferent to a serious medical need. Estelle v. Gamble, 429 U.S. 97,
103 (1976).
C. Objections
1. Plaintiff Bush’s Objections
In his objections, Bush continues to assert that the Department of
Corrections acted outside of the scope of its authority in its placement of him from a
state correctional facility to a county facility. He claims the Department of
Corrections policy violated legislative intent. It appears Bush is claiming that 61 Pa.
Cons. Stat. § 1151 is a Department of Corrections policy. However, 61 Pa. Cons.
Stat. § 1151 is legislation passed by the state legislature and is not a department
policy. Therefore, the transfer was proper.
Bush’s claim of denial of adequate medical care are either general
statements or conclusory allegations. The only specific allegation is that Bush has
been denied dental care. He alleges “that, although aware of his deteriorating
condition, (hole in his wisdom tooth the size of a nickle) the defendants knowingly
willfully and wantonly refused to procure readily-available medical treatment
(extraction of tooth) which would have relieved his acute pain.” (Doc. 185 at p. 10.)
In his complaint, Bush states, “Plaintiff Bush has been complaining of toothaches
and pain since his arrival here but to no avail.” (Doc. 25 at p. 22.) Bush does not
allege who denied him treatment for the toothache nor does he allege that a specific
person was deliberately indifferent to his medical need. The statement in his
objection to the report and recommendation that his tooth should have been extracted
could be interpreted as a difference of opinion as to what medical treatment is
required.

6

The court agrees with the magistrate judge that Bush has failed to state a
cause of action under the Eighth Amendment.
2. Plaintiffs’ Equal Protection Claim
The plaintiffs bring an equal protection claim against the defendants
alleging that the Department of Corrections treats state inmates housed at county
correctional facilities differently than other state inmates. In order for the plaintiffs
to state an equal protection violation, they must show that they were similarly
situated to, and treated differently from, other inmates, and that this discrimination
was purposeful or intentional rather than incidental. Washington v. Davis, 246 U.S.
229, 239 (1976); Tillman v. Lebanon County Corr. Facility, 221 F.3d 410, 424 (3d
Cir. 2000).
The complaint fails to state that the alleged discrimination was
purposeful and intentional. In fact, the complaint specifically points out that the
plaintiffs were transferred because of overcrowding. This objection is overruled.
3. Plaintiff Allen’s Objections
Allen’s objection to the report and recommendation is basically an
argument that procedurally he has been severely disadvantaged. He claims that
Plaintiff Bush has been permitted to amend the complaint while he has not been
given the same opportunity. As noted above, however, the magistrate judge
addressed the amended complaint (Doc. 25) as the operative document. That
amended complaint was signed by Allen. At no time did Allen request an
opportunity to file an amended complaint on his own behalf nor did he object to the
magistrate judge’s order (Doc. 168) designating the amended complaint as the
operative complaint in this case.

7

Allen objects to the magistrate judge’s finding that the county
defendants are not liable under § 1983 under a theory of respondeat superior. Allen
conclusorily states the “County defendants inflicted an injury upon the plaintiff Allen
as a result of failure to train or supervise which caused the deliberate indifference to
plaintiff’s needs and condition of confinement.” (Doc. 177 at p. 3.) These are
conclusory allegations and do not rise to the specificity requires under Bell Atlantic
Corp. V. Twombly, 550 U.S. 544 (2007). Allen’s objections are overruled.

III.

Conclusion
For the reasons stated above, this court will adopt the report and

recommendation of the magistrate judge. An appropriate order will be issued.

s/Sylvia H. Rambo
United States District Judge
Dated: April 10, 2012.

8

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
FELDON BUSH, SR.; JAMES HILL; :
and ANTHONY ALLEN,
:
:
Plaintiff
:
:
v.
:
:
ED RENDELL, GOVERNOR, et al., :
:
Defendants
:

CIVIL NO. 1:10-CV-2246
(Judge Rambo)
(Magistrate Judge Mannion)

ORDER

For the reasons set forth in the accompanying memorandum, IT IS
HEREBY ORDERED THAT:
1) The court adopts the report and recommendation of Magistrate Judge
Mannion (Doc. 173).
2) The County Defendants’ motion to dismiss (Doc. 68) is GRANTED.
3) The Commonwealth Defendants’ motion to dismiss (Doc. 70) is
GRANTED.
4) Plaintiffs’ motions for a temporary restraining order/preliminary
injunction (Doc. 53), for mandatory injunctions (Doc. 113), to compel (Doc. 131),
and for a temporary restraining order (Doc. 147) are DENIED AS MOOT.
5) The Clerk of Court shall close this file.
6) Any appeal from this order will be deemed frivolous and not taken in
good faith.

Dated: April 10, 2012.

s/Sylvia H. Rambo
United States District Judge