Thomas v. Vuksta et al
Filing
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MEMORANDUM AND ORDER granting defts' motion to dismiss 21 & GRANTING pltf leave to amend his complaint to cure deficiencies noted in ct's memo, amended complaint to be filed by 12/20/11 under same case number on civil rts form complaint, DENYING any requests to have action consolidated w/ 1:10-CV-1639, & DENYING pltf's motions for appt of cnsl 28 & 30 . (See memo & order for complete details.) Signed by Honorable Christopher C. Conner on 11/29/11. (ki)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
ROBBIE THOMAS,
Plaintiff
v.
MAJOR VUKSTA, et al.,
Defendants
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CIVIL ACTION NO. 1:11CV-1089
(Judge Conner)
MEMORANDUM
Plaintiff Robbie Thomas (“Thomas” or “plaintiff”), a Pennsylvania state
inmate incarcerated at the State Correctional Institution at Mahanoy, Frackville,
Pennsylvania, commenced this civil rights action on June 7, 2011, alleging that he
has been subjected to retaliation. (Docs. 1, 3, 9.) Named as defendants are the
following individuals: Major Vuksta (“Vuksta); Former Corrections Officer Smith
(“Smith”); Mr. Murrick (“Murrick”); Charlie Brinich (“Brinich”).1 Presently
pending is defendants’ motion to dismiss the complaint pursuant to Federal Rule of
Civil Procedure 12(b)(6). (Doc. 21.) For the reasons that follow, the motion will be
granted and plaintiff will be afforded the opportunity to file an amended complaint.
On August 16, 2011, the Clerk of Court, acting on a letter from plaintiff,
removed defendant “Mr. Verner” from the docket sheet and substituted the name
of Charlie Brinich (“Brinich”), Psychologist. (Doc. 23 and “Docket Annotation”
dated August 16, 2011.) The letter (Doc. 23) is considered by the Court to be a
notice of voluntary dismissal of defendant Verner pursuant to Federal Rule of Civil
Procedure 41(a)(1)(A). Although the Clerk of Court added Brinich on the docket
sheet as a defendant, ordering service of the original complaint on Brinich would be
futile because plaintiff will be granted leave to amend his complaint.
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Also pending is plaintiff’s motion for appointment of counsel (Doc. 28) which
will be denied.
I.
Motion to Dismiss
A.
Standard of Review
Rule 12(b)(6) of the Federal Rules of Civil Procedure provides for the
dismissal of complaints that fail to state a claim upon which relief can be granted.
FED . R. CIV . P. 12(b)(6). When ruling on a motion to dismiss under Rule 12(b)(6), the
court must “accept as true all [factual] allegations in the complaint and all
reasonable inferences that can be drawn therefrom, and view them in the light most
favorable to the plaintiff.” Kanter v. Barella, 489 F.3d 170, 177 (3d Cir. 2007)
(quoting Evancho v. Fisher, 423 F.3d 347, 350 (3d Cir. 2005)). Although the court is
generally limited in its review to the facts contained in the complaint, it “may also
consider matters of public record, orders, exhibits attached to the complaint and
items appearing in the record of the case.” Oshiver v. Levin, Fishbein, Sedran &
Berman, 38 F.3d 1380, 1384 n. 2 (3d Cir. 1994); see also In re Burlington Coat
Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997).
Federal notice and pleading rules require the complaint to provide “the
defendant notice of what the . . . claim is and the grounds upon which it rests.”
Phillips v. County of Allegheny, 515 F.3d 224, 232 (3d Cir. 2008) (quoting Bell Atl.
Corp. v. Twombly, 550 U. S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). The
plaintiff must present facts that, if true, demonstrate a plausible right to relief. See
FED . R. CIV . P. 8(a) (stating that the complaint should include “a short and plain
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statement of the claim showing that the pleader is entitled to relief”); Ashcroft v.
Iqbal, 556 U.S. 362, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (explaining that Rule
8 requires more than “an unadorned, the-defendant unlawfully-harmed-me
accusation”); Twombly, 550 U.S. at 555 (requiring plaintiffs to allege facts sufficient
to “raise a right to relief above the speculative level”). Thus, courts should not
dismiss a complaint for failure to state a claim if it contains “enough factual matter
(taken as true) to suggest the required element. This does not impose a probability
requirement at the pleading stage, but instead simply calls for enough facts to raise
a reasonable expectation that discovery will reveal evidence of the necessary
element.” Phillips, 515 F.3d at 234 (quoting Twombly, 550 U.S. at 556).
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. 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
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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).
B.
Allegations of the Complaint
Plaintiff alleges that he is suffering “continued retaliation” for “my once
filing of civil actions on D.O.C.” (Doc. 1, at 2, ¶ 1.) The retaliatory acts include,
inter alia, the issuance of false misconducts, denial of due process in the context of
misconduct hearings, arbitrary placement in administrative detention and the
Restricted Housing Unit (“RHU”), and interference with disability compensation.
His allegations span dates from 2007 to 2011, and are contained in three separate
documents. (Docs. 1, 3, 9.) He also makes numerous references to, and seeks
consolidation with, a separate action filed in this court, Thomas v. McCoy, Civil
Action No. 1:10-CV-1639, which has since been dismissed pursuant to Federal Rule
of Civil Procedure 12(b)(6).
C.
Discussion
Section 1983 of Title 42 of the United States Code offers private citizens a
cause of action for violations of federal law by state officials. See 42 U.S.C. § 1983.
The statute provides, in pertinent part, as follows:
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Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory or the
District of Columbia, 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. . . .
Id.; see also Gonzaga Univ. v. Doe, 536 U.S. 273, 284-85 (2002); Kneipp v. Tedder, 95
F.3d 1199, 1204 (3d Cir. 1996). To state a claim under § 1983, a plaintiff must allege
“the violation of a right secured by the Constitution and laws of the United States,
and must show that the alleged deprivation was committed by a person acting
under color of state law.” West v. Atkins, 487 U.S. 42, 48 (1988).
Defendants seek to dismiss plaintiff’s complaint on the ground that plaintiff
fails to allege personal involvement. (Doc. 22, at 4.) “A defendant in a civil rights
action must have personal involvement in the alleged wrongs. . . . Personal
involvement can be shown through allegations of personal direction or of actual
knowledge and acquiescence.” Rode v. Dellarciprete, 845 F.2d 1195, 1207-08 (3d
Cir. 1988); see also, Rizzo v. Goode, 423 U.S. 362 (1976); Atkinson v. Taylor, 316 F.3d
257 (3d Cir. 2003). Thus, individual liability can be imposed under Section 1983 only
if the state actor played an “affirmative part” in the alleged misconduct. Rode,
supra. Alleging a mere hypothesis that an individual defendant had personal
knowledge or involvement in depriving the plaintiff of his rights is insufficient to
establish personal involvement. Rode, 845 F.2d at 1208.
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The First Amendment offers protection for a wide variety of expressive
activities. See U.S. Const. amend I. These rights are lessened, but not extinguished
in the prison context, where legitimate penological interests must be considered in
assessing the constitutionality of official conduct. See Turner v. Safley, 482 U.S. 78,
89 (1987). Retaliation for expressive activities can infringe upon an individual’s
rights under the First Amendment. See Allah v. Seiverling, 229 F.3d 220, 224-25 (3d
Cir. 2000). To prevail on a retaliation claim under 42 U.S.C. § 1983, plaintiff must
demonstrate (1) that he was engaged in protected activity; (2) that he suffered an
“adverse action” by government officials; and (3) that there is “a causal link
between the exercise of his constitutional rights and the adverse action taken
against him.” Rauser v. Horn, 241 F.3d 330 (3d Cir. 2001) (quoting Allah, 229 F.3d at
225).
Although plaintiff alleges that defendants were personally involved in the
adverse action he suffered which is allegedly in retaliation for having pursued civil
litigation in the past (Doc. 3, at ¶¶ 2-3, 7-8), he fails to include allegations of personal
involvement with respect to a causal link between the protected activity and the
adverse action; a necessary element of a retaliation claim. The complaint is
therefore subject to dismissal. However, plaintiff will be granted leave to amend his
complaint to cure the fatal deficiency, see Grayson, 293 F.3d at 108.
II.
Motion to Appoint Counsel
Plaintiff seeks the appointment of counsel “[i]n the interest of justice and
fundamental fairness.” (Doc. 28, at 1.) Assuming that plaintiff’s First Amendment
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retaliation claim has an arguable basis in law or fact, and based upon the complaint
and accompanying documents filed by plaintiff, it is evident that he is capable of
properly and forcefully prosecuting his claims with adequate factual investigation
and appropriate citations to governing authority, See Tabron v. Grace, 6 F.3d 147,
155-57 (3d Cir. 1993) (listing factors relevant to request for counsel). Further, at
present, there is no indication that complex legal or factual issues are implicated or
that the testimony of expert witnesses will be necessary. (Id.). Therefore, plaintiff’s
motion for appointment of counsel will be denied.
III.
Conclusion
Based on the foregoing, defendants motion to dismiss (Doc. 21) will be
granted but plaintiff will be given the opportunity to file an amended complaint.
Plaintiff’s motion for appointment of counsel (Doc. 28) will be denied.
An appropriate order follows.
S/ Christopher C. Conner
CHRISTOPHER C. CONNER
United States District Judge
Dated:
November 29, 2011
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
ROBBIE THOMAS,
Plaintiff
v.
MAJOR VUKSTA, et al.,
Defendants
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CIVIL ACTION NO. 1:11CV-1089
(Judge Conner)
ORDER
AND NOW, this 29th day of November, 2011, upon consideration of
defendants’ motion to dismiss (Doc. 21), and plaintiff’s motion for appointment of
counsel (Doc. 28), and for the reasons set forth in the accompanying memorandum,
it is hereby ORDERED that:
1.
Defendants’ motion to dismiss (Doc. 21) pursuant to Federal Rule of
Civil Procedure 12(b)(6) is GRANTED, however, plaintiff is GRANTED
leave to amend his complaint to cure the deficiencies noted in this
court’s memorandum.
2.
The Clerk of Court is directed to FORWARD to plaintiff a civil rights
form complaint.
3.
Plaintiff shall FILE an amended complaint, utilizing the enclosed civil
rights form, on or before December 20, 2011. No attachments to the
form will be accepted by the Court.
4.
The amended complaint shall contain the same case number that is
already assigned to this action, 1:11-CV-1089, and shall be direct,
concise, and shall stand alone without reference to any other
document filed in this matter. See FED . R. CIV . P. 8(e).
5.
Plaintiff is cautioned that if he includes in his amended complaint the
same allegations or defendants from Thomas v. McCoy, Civil Action
No. 1:10-CV-1639, the amended complaint will be STRICKEN as that
action has been dismissed.
6.
Failure to file the amended complaint in a timely fashion will be
deemed an abandonment of plaintiff’s claims and will result in the
termination of the entire action.
7.
Any requests to have this action consolidated with Thomas v. McCoy,
Civil Action No. 1:10-CV-1639, are DENIED as that action has been
dismissed.
8.
Plaintiff’s motions for appointment of counsel (Doc. 28, 30) are
DENIED. If further proceedings demonstrate the need for counsel,
the matter will be reconsidered either sua sponte or upon motion of
plaintiff.
S/ Christopher C. Conner
CHRISTOPHER C. CONNER
United States District Judge
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