DEEN-MITCHELL v. LAPPIN et al

Filing 86

ORDER (1) plaintiffs motions to amend and/or supplement his complaint, (Doc. No. 76) & (Doc. No. 81), are GRANTED, and plaintiff shall file one final all-inclusive amended complaint by February 15, 2012 in accordance with the directions provided abov e;(2)plaintiffs motion to have supplement to complaint held in abeyance, (Doc. No. 82), is DENIED as moot;(3)plaintiffs motions for the defendants to return his legal materials, (Doc. No. 71), (Doc. No. 73), (Doc. No. 83) & (Doc. No. 85), areDENIED; (4)plaintiffs motion for a court order regarding the preservation of evidence, (Doc. No. 78), is DENIED; and(5)plaintiffs supplemental complaint, (Doc. No. 77), is stricken from the record.Signed by Magistrate Judge Malachy E. Mannion on 1/10/12 (Attachments: # 1 Unpublished Opinion(s), # 2 Unpublished Opinion(s), # 3 Unpublished Opinion(s), # 4 Unpublished Opinion(s)) (bs, )

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
WALLACE DEEN-MITCHELL,
Plaintiff,

:
:
CIVIL ACTION NO. 1:11-1902

v.

:

HARLEY G. LAPPIN and
:
FEDERAL BUREAU OF PRISONS,
:
Defendants.

(CONNER, D.J.)
(MANNION, M.J.)

O R D E R1
Pending before the court are numerous motions filed by the plaintiff.
Specifically, plaintiff has filed two motions to amend and/or supplement his
complaint, (Doc. No. 76) & (Doc. No. 81), a “motion to have supplement to
complaint held in abeyance,” (Doc. No. 82), four motions for the defendants
to return his legal materials, (Doc. No. 71), (Doc. No. 73) (Doc. No. 83) &
(Doc. No. 85), and a motion for a court order regarding the preservation of
evidence, (Doc. No. 78).
I.

Background
By way of relevant background, the plaintiff commenced this action on

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For the convenience of the reader of this document in electronic
format, hyperlinks to the court’s record and to authority cited have been
inserted. No endorsement of any provider of electronic resources is
intended by the court’s practice of using hyperlinks.

November 4, 2009 by filing a complaint against the Bureau of Prisons and
Harley Lappin, Director of the Bureau of Prisons, in the United States District
Court for the District of Columbia. (Doc. No. 1). On July 16, 2010, the plaintiff
filed a motion for leave to file a supplemental complaint that was accompanied
by a supplemental complaint. (Doc. No. 25). On January 4, 2011, Judge Leon,
United States District Court for the District of Columbia, issued a minute order
granting plaintiff’s motion, and, therefore, the plaintiff’s supplemental
complaint was docketed as such on that day. See (Doc. No. 45). Furthermore,
a review of the supplemental complaint indicates that plaintiff intended for the
supplemental complaint to supplement his original complaint. See id.
Accordingly, the present operative complaint in this action is comprised of
(Doc. No. 1) and (Doc. No. 45), and the applicable factual background has
been summarized by Judge Howell, United States District Court for the
District of Columbia, as follows:
In the initial complaint, the Plaintiff alleges the following.
Lappin “implemented a substantive rule change in the BOP” that
resulted in “a new punitive housing status entitled the Special
Management Unit (SMU).” Compl. ¶1. “On or about April 23
2009,” Lappin “ordered and/or arranged and directed that the
Plaintiff be placed into the SMU [at the Talladega facility], without
due process,” and “being fully aware that the Plaintiff had
separations from other inmates in the SMU, [Lappin] ordered the
Central Inmate Monitoring (CIM) to be ignored in regards to
Plaintiff, and arranged for Plaintiff to be housed with a known
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enemy and separatee with the specific intent of causing the
wrongful death of the Plaintiff and placing [him] in imminent
danger . . . .” Id. ¶¶2-3. On the other hand, the Plaintiff alleges
that Lappin and the BOP designed and maintained the SMU “in
a manner which severely limits human contact . . . . Id. ¶5.
According to the Plaintiff, lights in the SMU’s cells remained on
“continuously,” daily exercise was not permitted, educational
programs were unavailable, and placement in SMU was
“indefinite.” Id.
In the first supplemental complaint, the Plaintiff alleges the
following. Since May 21, 2010, Lappin, “his agents, employees,
and persons acting in his concern, [have] placed the Plaintiff in
incommunicado [at the Lewisburg facility], and will not allow the
Plaintiff to send or receive mail from close family members,
friends, or the courts . . . or otherwise communicate, in violation
of the First Amendment . . . .” Supp. Compl. ¶1. On May 26, 2010,
Lappin “ordered the Plaintiff to be executed, resulting in an
attempt on the Plaintiff’s life and multiple injuries . . . .” Id. ¶3. On
May 24, May 31, June 2, and July 6 , 2010, the Plaintiff informed
Lappin that “several prison gangs and District of Columbia
inmates” had threatened his life and that there was “a contract on
his life[.]” Id. ¶4. When Warden Brian A. Bledsoe had previously
set the Plaintiff up to be assaulted, the Plaintiff sought protective
custody and separation orders. Id. Lappin refused the Plaintiff’s
request and “instead informed the Plaintiff that he would be forced
to cell with inmates that he identifies as enemies and that ‘special’
arrangements were being made to place the Plaintiff in Bledsoe’s
custody to end the Plaintiff’s life.” Id. On July 8, 2010, Lappin “had
the Plaintiff forced into a cell with [an] inmate . . . identified . . . as
an enemy, resulting in the Plaintiff being assaulted several times
and receiving injuries to his right eye, right foot and abdomen.” Id.
¶5. On July 9, 2010, Lappin gave similar orders to house the
Plaintiff with his enemies, which resulted in another assault from
which the Plaintiff suffered a broken arm; such events are
“continuing to date . . . .” Id. ¶¶7-8.
(Doc. No. 60 at 2-3).
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On September 20, 2010, the defendants filed a motion to dismiss to
dismiss under Federal Rule of Civil Procedure 12(b)(1) for lack of subject
matter jurisdiction, Rule 12(b)(3) for improper venue, and Rule 12(b)(6) for
failure to state a claim upon which relief can be granted. (Doc. No. 37). On
July 21, 2011, Judge Howell found that venue in the District of Columbia was
improper, and transferred this case to the Middle District of Pennsylvania.
(Doc. No. 60). Specifically, Judge Howell stated:
“ . . . most of the Plaintiff’s allegations regarding Lappin’s personal
participation in the wrongdoing ‘at best strain credulity and at
worse are frivolous.” Mem. Op. and Order (Sept. 27, 2010) (Leon,
J.) [Doc] No. 40 at 2. Nevertheless, the Court, liberally construing
the Plaintiff’s pro se filings, finds transfer of the case more
appropriate than dismissal for three reasons. First, to survive a
motion to dismiss under Rule 12(b)(6), a plaintiff need only plead
“enough facts to state a claim to relief that is plausible on its face”
and to “nudge[ ] [his] claims across the line from conceivable to
plausible.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).
“Determining whether a complaint states a plausible claim for
relief will . . . be a context-specific task that requires the reviewing
court to draw on its judicial experience and common sense.”
Ashcroft v. Iqbal, 129 S.Ct. 1937, 1950 (2009) (citation omitted).
The Court cannot ignore, and on a motion to dismiss must accept
as true, the Plaintiff’s allegations that on May 24, May 31, June 2,
and July 6, 2010, he informed Lappin that “several prison gangs
and District of Columbia inmates” had threatened his life and that
there was “a contract on his life,” Supp. Compl. ¶4, and that he
sustained serious injury from assaults on July 8 and July 9, 2010,
by inmates placed in his cell who had been identified as his
enemies. Id. ¶¶5, 7-8. If Lappin was personally aware of the
Plaintiff’s predicament and did nothing, he arguably could be
subject to Bivens liability for those incidents. See Fletcher v. U.S.
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Parole Comm’n, 550 F. Supp. 2d 30, 39 (D.D.C. 2008)
(discussing circumstances where Bivens liability may attach to
supervisors). Second, the Plaintiff presumably can amend the
complaint in the transferee court to add the proper indispensable
defendants, i.e., the individuals at USP Lewisburg directly
responsible for placing him with known separatees or enemies
and for any other unconstitutional conditions of his confinement.
See Corr. Servs. Corp., 534 U.S. at 72 (“If a federal prisoner in a
BOP facility alleges a constitutional deprivation, he may bring a
Bivens claim against the offending individual officer, subject to the
defense of qualified immunity . . . . [H]is only remedy lies against
the individual[.]”). Third, the Plaintiff’s Eighth Amendment claim for
injunctive relief is not foreclosed. See id. at 74 (recognizing that
a lawsuit for “injunctive relief has long been recognized as the
proper means for preventing entities from acting
unconstitutionally.”).
Because a Bivens action seeks to hold the defendant
personally liable, the proper venue for litigating such actions lies
in “(1) a judicial district where any defendant resides, if all
defendants reside in the same State, (2) a judicial district in which
a substantial part of the events or omissions giving rise to the
claim occurred . . . or (3) a judicial district in which any defendant
may be found, if there is no district in which the action may
otherwise be brought.” 28 U.S.C. § 1391(b); see Cameron, 983
F.2d at 256 (confirming that “[u]nder the Supreme Court's holding
. . . , [§1391(e)’s venue provision] applies only to suits against
government officers in their official capacities, not to Bivens
actions”) (citing Stafford v. Briggs, 444 U.S. 527 (1980)). The
residence of the only named defendant, Lappin, is unknown and
the individuals directly involved in the alleged wrongdoing are not
in the District of Columbia. Hence, §1391(b)(2) – the location of
the events giving rise to the complaint -- is controlling. Although
the alleged misconduct occurred at BOP facilities in Talladega,
Alabama, and Lewisburg, Pennsylvania, the Plaintiff alleges that
the constitutional violations are ongoing. Therefore, the Court
finds it in the interests of justice to transfer this action to the
judicial district where the Plaintiff is currently confined.
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(Doc. No. 60 at 4-5).
The plaintiff then filed a “motion for relief from judgment and/or for
reconsideration or, in the alternative, motion for leave to file [an] interlocutory
appeal,” (Doc. No. 61), which was subsequently denied, (Doc. No. 62). After
that motion was denied, the plaintiff appealed to the United States Court of
Appeals for the District of Columbia Circuit, (Doc. No. 63) & (Doc. No. 64),
and then withdrew his appeal, (Doc. No. 66).
On October 17, 2011, this action was electronically transferred to the
Middle District of Pennsylvania. (Doc. No. 67).
II.

Motions for Leave to Supplement and/or Amend the Complaint
A review of plaintiff’s motions for leave to amend and/or supplement the

complaint indicate that, plaintiff intended to file an amended complaint, but
that it never reached the court. It appears that based on the Memorandum
Opinion issued by Judge Howell, the plaintiff believed that he was entitled to
file an amended complaint in order to name additional defendants and
allegations based on events that occurred at USP-Lewisburg, and that he did
so. See (Doc. No. 76); (Doc. No. 82). However, the court has not received
that amended complaint.
In addition, the plaintiff has requested leave to supplement his, never
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received, amended complaint. Specifically, plaintiff contends that “since the
amended complaint was prepared, additional events and information that
relates back to those events has occurred necessitating a supplement to the
complaint, and . . . the granting of leave will allow all related issues to come
before the court at one time.” (Doc. No. 76 at 2).
In light of the foregoing, the court will construe plaintiff’s motions as
seeking leave to file an amended complaint and a supplemental complaint
pursuant to Federal Rule of Civil Procedure 15(a) and (d). Generally, a motion
to amend covers matters that occurred before the filing of the original
pleading but were overlooked at the time, and a supplemental pleading refers
to events that occurred after the original pleading was filed. Owens-Illinois,
Inc. v. Lake Shore Land Co., 610 F.2d 1185, 1188 (3d Cir. 1979).
Under Federal Rule of Civil Procedure 15(a), a party may amend its
pleading after receiving leave of court, and the court should freely give leave
when justice so requires. Fed. R. Civ. P. 15(a)(2). Moreover, “the Supreme
Court has encouraged generous application of this rule generally, allowing
leave to amend in the absence of evidence of undue delay, bad faith or
dilatory motive on the part of the movant, repeated failure to cure deficiencies
by amendments previously allowed, undue prejudice to the opposing party by

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virtue of allowing the amendment [or] futility of amendment.” See United
States v. Verdekal, No. 09-0068, 2011 U.S. Dist. LEXIS 149616, at*7 (M.D.
Pa. Dec. 30, 2011) (citations and internal quotation marks omitted).
Under Federal Rule of Civil Procedure 15(d), “On motion and
reasonable notice, the court may, on just terms, permit a party to serve a
supplemental pleading setting out any transaction, occurrence, or event that
happened after the date of the pleading to be supplemented. . . [].” Fed. R.
Civ. P. 15(d). Supplemental pleadings bring an action “up to date” by setting
forth new facts that have occurred since the filing of the original complaint and
that affect the controversy and the relief sought. Cont’l Life Ins. Co. v.
Shearson Lehman Hutton, Inc., No. 88-9279, 1990 U.S. Dist. LEXIS 14783,
at *2 (E.D. Pa. 1990). A motion for leave to file a supplemental pleading is left
“to the sound discretion of the trial court and should be freely granted when
doing so will promote the justiciable disposition of the case, will not cause
undue prejudice or delay or trial inconvenience and will not prejudice the
rights of any parties to the action.” Bronson v. Leedon, No. 04-1899, 2006
U.S. Dist. LEXIS 50364, at *6 (M.D. Pa. 2006) (quoting Bates v. W. Elec., 420
F. Supp. 521, 525 (E.D. Pa. 1976)). However, supplemental pleadings are
limited to those events related to the claim or defense asserted in the original

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pleading. Seymour/Jones v. Lefebvre, No. 90-2267, 1991 U.S. Dist. LEXIS
11886, at *3 (E.D. Pa. 1991). As this court explained, “[A] court may deny
leave to file a supplemental pleading where that pleading relates only
indirectly, if at all, to the original complaint and the alleged cause of action
arose out [of] an entirely unrelated set of facts . . . .” Nottingham v. Peoria,
709 F. Supp. 542, 544 (M.D. Pa. 1988).
Upon reviewing the rather confusing record, the court finds that
plaintiff’s motions for leave to amend and/or supplement his complaint should
be granted. As Judge Howell, United States District Court for the District of
Columbia, noted in his Memorandum Opinion, there are likely defendants at
USP-Lewisburg who were personally involved in the alleged events who can
be named as defendants in this action. The court agrees and finds that
plaintiff should be allowed to amend his complaint so that he may name any
defendants who were personally involved in the alleged violations of his
constitutional rights, and how those individuals violated his constitutional
rights. Furthermore, there is nothing in the record to indicate undue delay, bad
faith or dilatory motive on the part of the plaintiff, nor is there any prejudice to
the opposing parties by allowing amendment, and it does not appear that
such amendments would be futile.
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To the extent plaintiff has sought leave to supplement his complaint, this
will be accomplished by filing his new amended complaint. However, the
plaintiff is cautioned that all allegations must relate to his allegations in his
original and supplemental complaint, (Doc. No. 1) & (Doc. No. 45). To be
clear, any unrelated allegations must be raised in a separate action and the
plaintiff must pay the applicable filing fee. In addition, the court does not find
that the opposing parties will suffer any prejudice if the plaintiff is granted
leave to supplement his complaint.
In light of the fact that the court will grant plaintiff’s motions for leave to
amend and/or supplement his complaint, the plaintiff is directed to file one allinclusive amended complaint by February 15, 2012. In addition, no further
amendments or supplements to that complaint will be permitted. Moreover,
the plaintiff is directed that his all-inclusive amended complaint shall comply
with the following guidelines:
(a)

The plaintiff's amended complaint shall be complete, in and
of itself, without reference to any prior filings.

(b)

The plaintiff's amended complaint shall include any and all
defendants whom the plaintiff wishes to name in this action.

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(c)

The plaintiff's amended complaint must include appropriate
allegations of each defendant(s) personal involvement.

(d)

The plaintiff's amended complaint must specifically state
which

federally

protected

right(s)

he

alleges

the

defendant(s) have violated.
(e)

In accordance with Fed. R. Civ. P. 8(a), the plaintiff's
amended complaint shall set forth a short and plain
statement of the grounds upon which the court's jurisdiction
depends.

(f)

In accordance with Fed. R. Civ. P. 10(b), the plaintiff's
amended complaint shall be divided into separate,
numbered paragraphs, the contents of each of which shall
be limited, as far as practicable, to a statement of a single
set of circumstances.

(g)

In accordance with Fed. R. Civ. P. 8(d), each averment of
the plaintiff's amended complaint shall be simple, concise
and direct.

(h)

The plaintiff's amended complaint shall contain a short and

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plain statement of the claim for relief and a demand for
specific judgment.
(I)

Should the plaintiff fail to file his amended complaint
within the required time period, or fail to follow the
above mentioned procedures, a recommendation will
be made to dismiss this action.

Since the court is going to allow the plaintiff to file one all-inclusive
complaint, his “supplement to complaint,” (Doc. No. 77), will be stricken from
the record. In addition, plaintiff’s motion to have his supplement to the
complaint held in abeyance until the court receives his amended complaint,
(Doc. No. 82), will be denied as moot as the court is directing the plaintiff to
file one final all-inclusive amended complaint by February 15, 2012.
III.

Motions Regarding the Return of Plaintiff’s Legal Materials
Plaintiff has filed several motions seeking the return of his legal

materials. Specifically, plaintiff contends that prison officials at USPLewisburg have confiscated various documents he intended to use as exhibits
as well as his motion to amend his complaint, and a copy of his amended
complaint. See (Doc. No.’s 71, 72, 73, 83 & 85). As such, he seeks that the

12

court order that these documents be returned to him.
To the extent plaintiff seeks the return of his documents that he believes
are relevant to this case and may be used as exhibits, the court finds that, at
this stage of the proceedings, his motion should be denied as premature.
Assuming that these legal materials are relevant, the plaintiff will have ample
time to request these documents and other legal materials during the course
of discovery. As such, the court will deny his motion for the return of any
records, documents and legal materials without prejudice to him refiling his
motion at the close of discovery.
To the extent plaintiff seeks the return of his motion to amend his
complaint or amended complaint, the court finds that such a request is moot.
As discussed above, the plaintiff will be permitted to file one all-inclusive
amended complaint, and he will have sufficient time to do so.
Therefore, the plaintiff’s motions regarding the return of his legal
materials, (Doc. No. 71), (Doc. No. 73), (Doc. No. 83) & (Doc. No. 85) are
DENIED.
IV.

Motion regarding the Preservation of Evidence
Finally, the plaintiff seeks an order directing the defendants not to

13

destroy evidence. In plaintiff’s brief in support he indicates that he would like
the following evidence to be preserved: “a semen stained shirt and towel,
various videotapes; various photographs; letters and other written
documents.” (Doc. No. 78 at 2). He further indicates that this evidence is
described in “Exhibit No. 1.” Id. However, there is no exhibit attached to his
motion. Accordingly, the plaintiff has failed to provide the court with sufficient
specific information regarding what evidence he seeks to have preserved. As
such, the plaintiff’s motion “for an order directing defendants not to destroy
evidence,” (Doc. No. 78), will be DENIED without prejudice to him refiling the
motion, specifically identifying the evidence which he seeks to be preserved.
V.

CONCLUSION2
NOW, THEREFORE, IT IS HEREBY ORDERED THAT:
(1)

plaintiff’s motions to amend and/or supplement his complaint,
(Doc. No. 76) & (Doc. No. 81), are GRANTED, and plaintiff shall
file one final all-inclusive amended complaint by February 15,
2012 in accordance with the directions provided above;

(2)

plaintiff’s “motion to have supplement to complaint held in

2

For the convenience of the reader, the court has attached copies of
unpublished opinions cited within this document.
14

abeyance,” (Doc. No. 82), is DENIED as moot;
(3)

plaintiff’s motions for the defendants to return his legal materials,
(Doc. No. 71), (Doc. No. 73), (Doc. No. 83) & (Doc. No. 85), are
DENIED;

(4)

plaintiff’s motion for a court order regarding the preservation of
evidence, (Doc. No. 78), is DENIED; and

(5)

plaintiff’s supplemental complaint, (Doc. No. 77), is stricken from
the record.

s/ Malachy E. Mannion
MALACHY E. MANNION
United States Magistrate Judge
Date: January 10, 2012
O:\shared\ORDERS\2011 ORDERS\11-1902-02.wpd

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