McCain v. Wetzel et al

Filing 194

MEMORANDUM re dft's MOTION TO DISMISS 134 and R AND R of MJ Schwab 182 (Order to follow as separate docket entry)Signed by Honorable Sylvia H. Rambo on 10/06/14. (ma)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
AMIR HAKIM MCCAIN
a/k/a JOHN MCCAIN,
Plaintiff
v.
JOHN E. WETZEL, et al.,
Defendants

:
:
:
:
:
:
:
:
:
:

CIVIL NO. 1:12-CV-0789
(Judge Rambo)
(Magistrate Judge Schwab)

MEMORANDUM
Before the court is a report and recommendation by the magistrate judge
(Doc. 182) to whom this matter was referred in which she recommends that
Defendants’ motion to dismiss Plaintiff Amir Hakim McCain’s civil action under 42
U.S.C. § 1983 be granted in part and denied in part. On September 8, 2014, McCain
filed a brief objecting to portions of the report and recommendation (Doc. 193). He
alleges that “he has suffered an irreparable injury as being mentally incompetent as a
rape victim filing a final second amended complaint.” (Id. at p. 1.) McCain further
alleges that the magistrate judge “failed to timely rule on plaintiff’s motion for
protective order that was served on July 14, 2014.” (Id.)
In Plaintiff’s brief in support of his motion for protective order (Doc.
180), McCain seeks the following relief:
WHEREFORE, plaintiff demand for an Order instructing
the following: (a) Bob Rumick, RHIA Medical Records
Supervisor to release plaintiff’s mental health report to
plaintiff written by Jeff Case to prepare for court as being
incompetent as a rape victim, (b) Bob Rumick must send
the court plaintiff’s mental health report sealed, (c) grant a
hearing within 30 days from the date of this motion to
allow witness Rumick to testify regarding transmitting
plaintiff’s mental health records to attorney Chase Defelice
and attorney Lindsey Bierzonski and (d) plaintiff are

seeking for sanctions against defendants and damage for
having his mental health records in the amount of $100,000
within 30 days from the date of this motion.
Defendants treated the motion for a protective order as a discovery motion and cited
to documents 162, 167, 172, and 175, which stated that “discovery motions will not
be entertained until the defendants’ motion to dismiss is decided.” (Doc. 181.)
Plaintiff, in his reply, claims he is placed in a “catch 22 situation.” (Doc. 189 at p.
2.) He claims that he needs a hearing to show that he is “mentally incompetent as a
rape victim.” (Id.) The only area that the court can deduce that a claim of
incompetency is put forth pertains to an abandonment of some of his claims in his
second amended complaint and is seeking to be allowed to file a third amended
complaint. In the report and recommendation, the magistrate judge noted, “McCain,
who made no reference to, or incorporated his initial complaint, abandoned all other
claims previously raised.” (Doc. 182 at p. 4 n.1 (citations omitted).) McCain
requests that this portion of the report and recommendation “be vacated and
remanded to allow the psychology department to testify . . . to ascertain whether he
was competent to abandon his claims.” (Doc. 193 at p. 11.) For that reason, he
requests that the recommended denial to file a third amended complaint not be
adopted, and that he be allowed to file a third amended complaint. (Id.)
The first time that McCain’s mental condition was raised was by his
motion for mental examination filed on November 19, 2013 in which McCain sought
the following relief:
[P]laintiff request to be granted following: (1) a court order
to be transported to SCI-Graterford on December 18,
2013for the U.S. Marshals to transport plaintiff from SCIGraterford on December 23, 2013 to the Philadelphia
Federal Detention Center to be examined by their
psychologist at 9:00 a.m. (2) the psychologist will
2

determine whether plaintiff is mentally incompetent as a
rape victim that was place in immient [sic] danger in
drafting a correct final amended complaint of legal claims
in short and concise of being denied access to the courts.
(Doc. 148 at p. 2.) McCain stated that his family will pay the Philadelphia Federal
Detention Center to conduct the mental examination within thirty five days. (Id. at ¶
6.)
The magistrate judge denied the request as Federal Rule of Civil
Procedure 35(a)(1) permits a court to order a mental or physical examination only
where a party to an action has his mental state called into controversy. Such is not
the case here.
McCain filed an objection (Doc. 153) to the magistrate judge’s order of
November 19, 2013 (Doc. 149) in which the magistrate judge denied McCain’s
request that he be transported for a mental examination. This court treated the
objection as an appeal from the magistrate judge’s order. By order dated December
4, 2013, this court stated, “[w]hile this court will not interfere with McCain having a
mental examination performed at his own expense, it will not order Mr. McCain
transferred to another prison for the purpose of his examination. Said examination
can be arranged to be performed where he is presently incarcerated.” (Doc. 176.)
Despite this order, McCain kept filing motions for an order requesting a transfer to
the Philadelphia Federal Detention Center for a mental examination. The magistrate
judge treated these requests as a motion for discovery, which were denied pending
disposition of the pending motion to dismiss. (Docs. 167, 172.)
On April 14, 2014, McCain filed a “Motion for Objection to Magistrate
Judge’s Pretrial Order Dated April 1, 2014.” (Doc. 176.) In that motion, McCain
objected to the fact that the magistrate judge failed “to advise the Department of
3

Corrections that plaintiff be permitted to hire a psychologist for a mental
examination at the Philadelphia Federal Detention Center.” (Id.) By order of this
court dated April 14, 2014 (Doc. 177), that issue was again addressed, McCain was
reminded that the issue was addressed previously, and the relief requested had been
denied.
Certainly as of April 14, 2014, and even by December 4, 2013 (Doc.
154), McCain knew that the court was not going to order his transfer to another
institution for a mental examination. He knew that any examination would be done
at his own expense and at the institution where he was confined. (Doc. 154.)
McCain has not filed any affidavit as to what the psychologist would
testify as to his mental competency at the time he filed his second amended
complaint, nor why he is now competent to file a third amended complaint. Nor has
McCain complied with Middle District Local Rule 15.1 by filing a copy of a
proposed amended pleading. He has been granted leave to amend his complaint on
two prior occasions and has failed to satisfy the pleading standards.
McCain’s objection to the report and recommendation that he was
mentally incompetent at the time he filed his second amended complaint and that he
be granted leave to file a third amended complaint will be rejected. His request that
defendants’ motion to dismiss be denied will not be granted.
On August 14, 2014, McCain filed a motion for extension of time to file
objections to the report and recommendation (Doc. 185). This motion was granted
and the deadline was extended to September 2, 2014 (Doc. 186). On September 2,
2014, McCain filed another motion for extension of time to September 16, 2014 to
file objections (Doc. 192). Since objections to the report and recommendation were
4

filed on September 8, 2014, this motion will be deemed moot and the objections are
deemed timely filed.
The report and recommendation of the magistrate judge (Doc. 182) will
be granted. An appropriate order will be issued.

s/Sylvia H. Rambo
United States District Judge
Dated: October 6, 2014.

5