West v. Shultz et al
Filing
54
ORDER - IT IS HEREBY ORDERED THAT: 1. Plaintiffs motion to amend the complaint (Doc. No. 20) is denied. 2. Plaintiffs motions for injunctive relief (Docs. No. 29, 37) are denied. 3. Plaintiffs motion to deny or to continue Defendants motion to dismis s and for summary judgment (Doc. No. 44) is denied. 4. Within twenty-one (21) days from the date of this order, Plaintiff shall file his opposition to Defendants motion to dismiss and for summary judgment. 37 37 44 20 Signed by Honorable Yvette Kane on 9/27/2013 (sc)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
GERALD A. WEST,
Plaintiff
:
:
:
:
:
:
:
v.
OFFICER SHULTZ, et al.,
Defendants
No. 1:12-cv-1004
(Judge Kane)
MEMORANDUM
Before the Court are Plaintiff Gerald A. West’s motion to amend his complaint (Doc. No.
20), motion for injunctive relief (Doc. Nos. 29, 37), and motion to deny or to continue
Defendants’ motions to dismiss and for summary judgment (Doc. No. 44). For the reasons that
follow, the Court will deny Plaintiff’s motion to amend his complaint and motion for injunctive
relief. In addition, the Court will deny Plaintiff’s motion to deny or to continue Defendants’
motions to dismiss and for summary judgment.
I.
BACKGROUND
On May 29, 2012, Plaintiff Gerald A. West , an inmate at the United States Penitentiary
at Lewisburg (“USP-Lewisburg”), filed a combined Bivens1 and Federal Tort Claims Act2
(“FTCA”) action against the United States of America and several federal employees setting
forth claims of deliberate indifference, failure to protect, retaliatory tactics, and denial of food
and water. (Doc. No. 1.) Plaintiff named as Defendants the United States of America, and the
following current or former employees at USP-Lewisburg: B.A. Bledsoe, retired Warden; K.
1
See Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S.
288 (1971).
2
Federal Tort Claims Act, 28 U.S.C. § 2671.
1
Bahre, D. Young, and D. Hudson, Associate Wardens; K. Whittener, Lieutenant; J. Adami, Unit
Manager; M. Edinger, Counselor; and C. Shultz and B. Shade, Correctional Officers. (Id. at 2.)
On September 20, 2012, Defendants filed a motion to dismiss the complaint and for
summary judgment in their favor. (Doc. No. 16.) Defendants argued that the Court should grant
summary judgment with regard to all Bivens claims except the claims against Defendants Shade
and Shultz because Plaintiff failed to exhaust administrative remedies, and urged the Court to
enter judgment in their favor on Plaintiff’s FTCA claims because Plaintiff failed to properly
exhaust his administrative tort claim. (Doc. No. 17.) Defendants further argued that the Court
should dismiss Plaintiff’s claims against Defendants Shade, Edinger, Adami, Whittaker, Bahre,
Bledsoe, Hudson, and Young for Plaintiff’s failure to state a constitutional violation; and should
dismiss the deliberate indifference claim against Defendant Shultz because Plaintiff failed to
sufficiently allege personal involvement. (Id.) Finally, Defendants argued that they are entitled
to qualified immunity from suit. (Id.)
On October 19, 2012, Plaintiff filed a motion to amend his complaint to arrange his
claims in a more understandable fashion and to clarify the identity of one of the Defendants as
Officer Spade, not Officer Shade.3 (Doc. No. 21.) Defendants filed a brief in opposition to
Plaintiff’s motion to amend, arguing that the proposed amended complaint is deficient, and
asserting that Defendants interpreted all allegations in the original complaint concerning Officer
3
In both the original and proposed amended complaints, Plaintiff names as a defendant
Officer Spade. In Defendants’ motions to dismiss and for summary judgment, Defendants refer
to this defendant as Officer Shade. Plaintiff contends that there are two employees at the prison Officer Spade and Officer Shade. He states that he names and refers to Spade as a defendant in
the complaint, and only mentions Shade, who is not a named defendant in this action. (Doc. No.
21.)
2
Spade or Officer Shade to be the same allegations and responded accordingly. (Doc. No. 22 at
8.) Thus, Defendants argue, any proposed amendment on the basis of clarifying the identity of
Officer Spade is futile. (Id.) Defendants further argue that a comparison of Plaintiff’s original
and proposed amended complaints reveals that the allegations remain essentially the same with
the prayer for relief as the only significant difference.4 (Id. at 6.)
On June 5, 2013, Plaintiff filed a motion for a preliminary injunction and for a temporary
restraining order to prevent Defendants from: (1) refusing to copy legal documents for him; (2)
freezing money in Plaintiff’s account to prevent him from buying stamps; and (3) threatening
and physically abusing Plaintiff. (Doc. No. 37.) On July 1, 2013, Plaintiff filed a motion to
deny or continue Defendants’ motions to dismiss or for summary judgment until Plaintiff has the
opportunity to conduct discovery. (Doc. No. 44.) Defendants have filed briefs in opposition to
Plaintiff’s motion for a preliminary injunction and his motion for continuance. (Doc. Nos. 42,
49.)
A.
Allegations in the Complaint
In his complaint, Plaintiff enumerates multiple claims of abuse, neglect, and threatening
tactics by current and former employees of USP-Lewisburg. First, Plaintiff claims that on
August 10, 2010, after reporting to an officer at USP-Lewisburg that his cell-mate threatened to
stab him to death if he did not move out, the officer ignored his report, and Plaintiff was sexually
assaulted by his cell-mate. (Doc. No.1 at 3.) Plaintiff further claims that on August 11, 2010,
4
In the proposed amended complaint, Plaintiff seeks the same amount of compensatory
damages, plus one hundred thousand dollars in punitive damages, restoration of “all of Plaintiff
invested and non-invested good time,” and he requests “immediately arrange for medical
treatment for Plaintiff.” (Doc. No. 20-1 at 3.)
3
after he notified a physician’s assistant that he had been assaulted, Defendant Schultz told his
cell-mate that Plaintiff had reported the incident. (Id.) Plaintiff claims that after Defendant
Schultz left, Plaintiff was sexually assaulted a second time. (Doc. No. 1 at 4.) After this
incident, Plaintiff alleges that he refused to give back his food tray until a Lieutenant was
notified of the assault. (Id.) Consequently, Plaintiff claims he was removed from his cell by a
Lieutenant and by Defendant Adami, who threatened Plaintiff by saying that he was to remain
quiet about the incident or he would not be able to leave the Special Management Unit. (Id.)
Thereafter, Plaintiff claims that Defendant Adami moved Plaintiff back to his cell block and told
him to find a cell-mate or he would be placed in restraints. (Doc. No. 1 at 5.) Plaintiff indicates
that on March 23, 2011, he filed a complaint against Defendant Adami with respect to this threat.
(Id.)
Plaintiff alleges that another incident took place on March 28, 2011, stating that
Defendant Spade falsified a misconduct report so that Plaintiff would be placed in hand restraints
and taken to a cell with another inmate in restraints. (Doc. No. 1 at 5.) Plaintiff claims that he
was thrown on top of the other inmate, and then kicked to the floor by said inmate. (Id.)
Plaintiff alleges that after this incident, he had to sleep on the floor for two days with no
restroom or food, and that during this two-day period, he complained that his restraints were too
tight and that he needed medical attention. (Doc. No. 1 at 6.) Plaintiff claims that his complaints
of numbness in his hands were ignored by a physician’s assistant and the symptoms were not
reflected in Plaintiff’s medical record. (Id.)
In his complaint, Plaintiff also alleges that he was subjected to retaliatory tactics for
engaging in hunger strikes. (Doc. No. 1 at 7, 8.) Plaintiff claims that after he went on a hunger
4
strike on May 12, 2011, he was stripped of all his property and provided with paper clothing by
individuals not named as defendants in this action. (Doc. No. 1 at 7.) Plaintiff further alleges
that he told Defendants Edinger and Whittener that he did not want to live with a particular
inmate because that inmate had stated he would assault anyone housed with him. (Id.) Plaintiff
claims that Defendants Edinger and Whittener told him that he would get a cell-mate regardless
of whether he was on a hunger strike or not, and that Plaintiff would go in the cell with his cellmate or he would be placed in restraints. (Id.) Plaintiff alleges that after he was placed in the
cell, he was kicked by the inmate in the ribs and chest. (Doc. No. 1 at 8.) Plaintiff claims that
after this incident, he was placed in an empty cell and denied mail, hygiene items, clean clothes,
and toilet paper. (Id.) Plaintiff also alleges that Defendants Hudson, Bahre, and Young told
Plaintiff that he was not getting any personal or institutional property back until he ended his
hunger strike. (Id.)
II.
DISCUSSION
A.
Motion to Amend
In Plaintiff’s motion for leave to file an amended complaint, Plaintiff seeks to clarify the
identity of one of the defendants and to arrange his claims in a more understandable fashion.
Plaintiff’s proposed amended complaint is not identical to the original complaint, but it does set
forth the same claims against the same defendants with few changes from the original complaint
besides the prayer for relief.
Rule 15 of the Federal Rules of Civil Procedure governs amendments and
supplementation of pleadings. Fed. R. Civ. P. 15. Rule 15(a) authorizes a party to amend his
pleading once as a matter of course within 21 days after service, or, if the pleading is one to
5
which a responsive pleading is required, within 21 days after service of the responsive pleading
or within 21 days after service of a dispositive motion under Rule 12, whichever is earlier. Fed.
R. Civ. P. 15(a)(1)(A) and (B). “In all other cases, a party may amend its pleading only with the
opposing party’s written consent, or with the court’s leave,” which courts are to give freely
“when justice so requires.” Fed. R. Civ. P. 15(a)(2). Leave to amend may be denied if the court
finds “undue delay, bad faith or dilatory motive on the part of the movant, failure to cure
deficiencies by amendment previously allowed, undue prejudice to the opposing party by virtue
of the allowance of the amendment, or futility of the amendment.” Forman v. Davis, 371 U.S.
178, 182 (1962); see also Oran v. Safford, 226 F.3d 275, 291 (3d Cir. 2000).
Additionally, “amendment of the complaint is futile if the amendment will not cure the
deficiency in the original complaint or if the amended complaint cannot withstand a renewed
motion to dismiss.” Jablonski v. Pan American World Airways, Inc., 863 F.2d 289, 292 (3d Cir
1988) (citing Massarsky v. General Motors Corp., 706 F.2d 111, 125 (3d Cir. 1983)). “Futility”
means that the complaint, as amended, would fail to state a claim upon which relief could be
granted. In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1434 (3d Cir. 1997) (citing
Glassman v. Computervision Corp, 90 F.3d 617, 623 (1st Cir. 1996)). In assessing “futility,” the
district court applies the same standard of legal sufficiency as it applies under Rule 12(b)(6). Id.
Besides the relief sought, there are no other discernable changes in Plaintiff’s proposed
amended complaint. The defendants named and the claims set forth against them remain the
same. As such, Defendants’ motions to dismiss and for summary judgment, if successful, would
make the proposed change to relief sought futile. The proposed changes to the relief sought do
not cure the deficiencies in the original complaint in light of the arguments raised in Defendants’
6
pending motion to dismiss, which include the failure to exhaust and the lack of personal
involvement. For these reasons, Plaintiff’s motion to amend his complaint is futile and the
motion will be denied.
B.
Motions for Injunctive Relief
In a letter addressed to the Court and filed on April 16, 2013, Plaintiff alleges that since
the filing of this lawsuit, he has experienced threats and physical abuse from the staff at USPLewisburg. (Doc. No. 29.) The concerns raised by Plaintiff are with respect to Defendant
Edinger and two others not named as defendants in this matter. Plaintiff claims that these
individuals threatened to kill him if he did not drop his complaint. (Id.) Plaintiff further claims
that he has not received any food since April 8, 2013, and that prison officials have cut off his
water supply for days at a time, and that his weight has dropped from 170lbs to 140lbs. (Id.) On
June 5, 2013, Plaintiff filed a motion for injunctive relief seeking a temporary restraining order
or a preliminary injunction. (Doc. No. 37.)
In the motion for injunction relief, Plaintiff claims that on May 14, 2013, he was on a
“declared hunger strike” and that he had to be taken from his cell to have his vital signs checked.
(Doc. No. 38.) Plaintiff alleges that the officers involved in this incident instructed Plaintiff to
eat the food they gave him or the officer would “beat the shit out of him.” (Id.) Plaintiff further
alleges that when he refused the food, the officers came into his cell and assaulted him and
thereafter place him in steel restraints that cut off the circulation to his hands and legs. (Id.) In
support of his motion, Plaintiff filed a copy of an incident report describing Plaintiff assaulting a
prison officer and refusing to obey an order. (Id.)
A court should issue an injunction only if the movant produces evidence sufficient to
7
convince a trial judge that these factors favor preliminary relief. Opticians, 920 F.2d at 192
(citing ECRI v. McGraw Hill, Inc., 809 F.2d 223, 226 (3d Cir. 1987)). “The purpose of the
preliminary injunction is to preserve the status quo until the rights of the parties can be fairly and
fully litigated and determined by strictly legal proofs and according to the principles of equity.”
Wetzel v. Edwards, 635 F.2d 283, 286 (4th Cir. 1980) (citing Meiselman v. Paramount Film
Distributing Corp., 180 F.2d 94, 97 (4th Cir. 1950)). Thus, the grant of injunctive relief is an
“extraordinary remedy which should be granted only in limited circumstances.” American
Telephone & Telegraph Co. V. Winback and Conserve Program, Inc., 42 F.3d 1421 (3d Cir.
1994) (quoting Frank’s GMC Truck Center, Inc. v. General Motor Corp., 847 F.2d 100, 102 (3d
Cir. 1988)). The party seeking a temporary restraining order or preliminary injunctive relief has
the burden of demonstrating: (1) a reasonable probability of success on the merits; (2)
irreparable harm if the injunction is denied; (3) that the issuance of an injunction will not result
in greater harm to the non-moving party; and (4) that the public interest would best be served by
granting the injunction. Council of Alternative Political Parties v. Hooks, 121 F.3d 876, 879 (3d
Cir. 1997); Clean Ocean Action v. York, 57 F.3d 328, 331 (3d Cir. 1995); Opticians Ass’n of
America v. Independent Opticians of America, 920 F.2d 187, 191-92 (3d Cir. 1990). The facts
must support a finding that immediate and irreparable injury will result to the movant if the
request for preliminary relief is denied. United States v. Stazola, 893 F.2d 34, 37 n.3 (3d Cir.
1990). The plaintiff bears the burden of establishing a “clear showing of irreparable injury.”
Hohe v. Casey,868 F.2d 69, 72 (3d Cir. 1989); ECRI, 809 F.2d at 226 (“It is not enough to
merely show irreparable harm. The plaintiff has the burden of showing immediate irreparable
injury, which is more than merely serious or substantial harm and which cannot be redressed
8
with money damages.). Absent a showing of immediate irreparable injury, the court should deny
preliminary injunctive relief. Acierno v. New Castle County, 40 F.3d 645, 655 (3d Cir. 1994).
Moreover, in the prison context, a request for injunctive relief “must always be viewed
with great caution because ‘judicial restraint is especially called for in dealing with the complex
and intractable problems of prison administration.’” Goff v. Harper, 60 F.3d 518, 520 (8th Cir.
1995) (quoting Rogers v. Scurr, 676 F.2d 1211, 1214 (8th Cir. 1982)). When a plaintiff requests
an injunction that would require a court to interfere with the administration of a prison,
“appropriate consideration must be given to principles of federalism in determining the
availability and scope of equitable relief.” Rizzo v. Goode, 423 U.S. 362, 379 (1976). Prison
officials require broad discretionary authority as the “operation of a correctional institution is at
best an extraordinarily difficult undertaking.” Wolff v. McDonnell, 418 U.S. 539, 566 (1974).
Accordingly, prison administrators should be accorded wide-ranging deference in the adoption
and execution of policies and practices that are needed to preserve internal order and to maintain
institutional security. Beard v. Banks, 548 U.S. 521 (2006); Bell v. Wolfish, 441 U.S. 520, 527
(1979). With these considerations in mind the Court finds that neither preliminary injunctive
relief nor a temporary restraining order is warranted in this case.
In opposition to Plaintiff’s motion, Defendants submitted the Declaration of S. Heath, a
Special Investigative Agent (“SIA”) employed by the Bureau of Prisons, who conducted an
investigation in Plaintiff’s allegations of threats to his life by Defendant Edinger and other
individuals. (Doc. No. 31, Ex. A at ¶ 1.) SIA Heath concluded that the allegations were without
merit, and that Plaintiff was not at risk of being harmed by Defendant Edinger or other
employees of USP-Lewisburg. (Id.) The Defendants also submitted the Declaration of J.
9
Treibley, a correctional officer at USP-Lewisburg, who has access to inmates’ records. (Doc.
No. 31, Ex. B.) Officer Treibley is assigned to the same floor as Plaintiff and states that all
inmates in the Special Management Unit are fed in their cells and that weekly records are kept
with respect to whether an inmate accepts or refuses any of his three meals a day. (Id. at 3.)
Records from April 7, 2013 through April 22, 2013 reveal that Plainitff refused his breakfast
meal from April 9-11 and April 14-15; he refused his supper meal on April 9 and April 13, 2013;
and he accepted all of his other meals during that period of time. (Id.) Treibly further states that
Plaintiff is able to access water in his current cell assignment through the running water that is
accessible to the inmates by depressing a button in the sink. (Id.)
Defendants also submitted the Declaration of K. Pigos, Clinical Director of the medical
department at USP-Lewisburg, who has access to inmate records. (Doc. No. 31, Ex. C.) Pigos
notes that Plaintiff’s medical records reveal that since the time of Plaintiff’s arrival at USPLewisburg on February 16, 2010, he has declared hunger strikes on four occasions. (Id.)
Plaintiff declared the first strike on May 16, 2011 after he had missed twelve meals; he was
medically assessed at the time and weighed 150lbs. (Id.) The strike ended on June 3, 2011 and
no intravenous feedings occurred during this hunger strike. (Id. at ¶ 2) The second hunger strike
was declared by Plaintiff on October 23, 2011 after he missed his ninth meal. (Id.) Plaintiff’s
weight was 137lbs, and the potential consequences of a hunger strike were explained to him.
(Id.) On November 2, 2011, Plaintiff continued on his hunger strike and missed his 39th meal as
of breakfast on said date. (Id.) His weight was 143lbs and intravenous fluids were administered
to prevent dehydration. (Id.) On November 9, 2011, Plaintiff continued on his hunger strike.
(Id.) It was noted that involuntary feeding was not clinically indicated at that time. (Id.)
10
Plaintiff ended his hunger strike on November 14, 2011. (Id.)
Medical records indicate that a third hunger strike was declared on December 11, 2011
after Plaintiff missed eleven meals. (Doc. 31, Ex. C, Pigos Decl. ¶ 4; Att. 8, Med. Record.)
Plaintiff’s weight was 135lbs and once again, the consequences of a hunger strike were
explained to him. (Id.) Although the medical records do not indicate with certainty when this
strike ended, the Chronic Care Clinic saw Plaintiff on December 23, 2011, and the record notes
that he was feeling better and his appetite was good. (Id.) Plaintiff declared a fourth hunger
strike on June 2, 2012 after he missed eight meals. (Id., Ex. C ¶ 6; Att. 10.) The strike ended the
following day. (Id, Att. 11.) The Chronic Care Clinic saw Plaintiff again on June 22, 2012, and
his weight was 161lbs. (Id.) His medical records further indicate that when the medical staff
saw Plaintiff on April 23, 2013, Plaintiff indicated that he had just finished another hunger strike
that had not been reported to anyone. (Id.) His weight at the time was 158lbs. (Id., Ex. C, Att.
13.)
Based on the foregoing, the Court finds that injunctive relief is not warranted with
respect to Plaintiff’s motion for a temporary restraining order. First, Plaintiff asks the Court to
issue a restraining order against three BOP employees who are not parties to this action. Federal
Rule of Civil Procedure 65 provides that a restraining order is binding only upon the parties to
the action, their “officers, agents, servants, employees, and attorneys” and “other persons who
are in active concert or participation” with them. Fed. R. Civ. P. 65(d)(2). “A non-party cannot
be bound by the terms of an injunction unless the non-party is found to be acting ‘in active
concert or participation’ with the party against whom injunctive relief is sought.” Elliot v.
Kiesewetter, 98 F.3d 47, 56 (3d Cir. 1996) (quoting Fed. R. Civ. Pro. 65). Plaintiff has not
11
presented any evidence indicating that the non-parties named in his motion for injunctive relief
are in any way in “active concert or participation” with the Defendants listed in the original
complaint.
Additionally, Plaintiff seeks to obtain relief with respect to events that are totally
unrelated to the events that serve as the basis of the underlying complaint in this action. See
Devose v. Herrington, 42 F.3d 470, 471 (8th Cir. 1994) (finding that a motion based on new
assertions of mistreatment different from those raised in plaintiff’s lawsuit cannot provide the
basis for a preliminary injunction). Plaintiff’s motion contains allegations which appear to have
no connection to the allegations of his complaint. Even if the basis of the motion directly relates
to the allegations in the complaint, Plaintiff fails to demonstrate that he is likely to prevail on the
merits of his claims in light of the arguments set forth in Defendants’ pending motion to dismiss.
The only evidence Plaintiff submits in support of his motion is a copy of an Incident Report
charging him with committing the prohibited acts of assaulting any person and refusing to obey
an order. (Doc. No. 38-2.) If anything, this document undermines, rather than supports,
Plaintiff’s argument with respect to what took place on May 14, 2013.
Further, Plaintiff has not made any showing that the denial of his motion would result in
irreparable harm, particularly in light of the evidence submitted by Defendants. Plaintiff does
not specify any injury that he is currently suffering, and he does not indicate whether he has
utilized the BOP’s grievance procedures. More importantly, the Special Investigative Agent’s
investigation conducted with respect to Plaintiff’s allegations revealed that he was not in any
danger. To the extent that Plaintiff claims that water and food are being withheld from him, the
records submitted by Defendants reveal that Plaintiff has running water at his disposal in his cell,
12
and that food is provided to him three times per day. The records further document that Plaintiff
has declared several hunger strikes and that he has refused meals provided to him on numerous
occasions. Plaintiff offers nothing to dispute the evidence submitted by the Defendants except
the unsupported, conclusory statements that the Special Investigative Agent’s investigation was
incomplete or that persons submitting declarations had no knowledge of the events. Finally,
Plaintiff can pursue relief in a new lawsuit with respect to any new claims. For these reasons,
the first motion for injunctive relief will be denied.
C.
Motion to Deny or Order a Continuance
In his motion requesting that the Court either deny or grant a continuance of Defendants’
motions to dismiss and for summary judgment, Plaintiff claims that Defendants have not
responded to his requests for the production of documents. (Doc. No. 44.) Defendants have not
submitted a motion to stay discovery, but they have filed a “Brief in Opposition to Plaintiff’s
First Request for Production of Documents.” (Doc. No. 43.) For the reasons that follow,
Plaintiff’s motion will be denied.
The Court has broad discretion to stay discovery pending a dispositive motion. Panola
Land Buyers Ass’n v. Shuman, 762 F.2d 1550, 1560 (11th Cir. 1985). A stay is proper when the
likelihood that a motion to dismiss may result in a narrowing or outright elimination of discovery
outweighs any likely harm from the delay. Nineteenth St. Baptist Church v. St. Peters Episcopal
Church, 190 F.R.D. 345, 349 (E.D. Pa. 2000). In Mann v. Brenner, 375 F.App’x 232, 239-40
(3d Cir. 2010), the Third Circuit stated that staying discovery while evaluating a motion to
dismiss may be appropriate in certain circumstances. For instance, staying discovery would be
appropriate while evaluating a motion dismiss where, if the motion to dismiss is granted,
13
discovery would be futile. Id. The Third Circuit further stated that:
A Motion to Dismiss pursuant to Rule 12(b)(6) tests the legal
sufficiency of a claim, and therefore need not be decided on its face
without extensive factual development. See Neitzke v. Williams, 490
U.S. 319, 326-27 (1989)(stating the purpose of Rule 12(b)(6) is to
“streamline [] litigation by dispensing with needless discovery and
factfinding); Chudasama v. Mazda Motor Corp., 12 F.3d 1353, 1367
(11th Cir. 1997)(“A motion to dismiss based on failure to state a claim
for relief should . . . be resolved before discovery begins.”); Rutman
Wine Co. V. E. & J. Gallo Winery, 829 F.2d 729, 738 (9th Cir.
1987)(stating that the idea that discovery should be permitted before
deciding a motion to dismiss “is unsupported and defied common
sense [because] the purpose of Fed. R. Civ. P. 12(b)(6) is to enable
defendants to challenge the legal sufficiency of complaints without
subjecting themselves to discovery.”).
Mann, 375 F.App’x at 239.
In Defendants’ motions to dismiss or for summary judgment, they seek to dismiss the
majority of Plaintiff’s claims on the basis of failure to exhaust administrative remedies. With
respect to any remaining claims, they seek dismissal due to Plaintiff’s failure to allege personal
involvement or failure to set forth a viable violation of a constitutional right. Plaintiff need not
conduct discovery in order to respond to these arguments. If the Court finds Defendants
arguments meritorious, then discovery would be futile. To the extent any of the arguments set
forth in support of dismissal of the complaint are found to be without merit, the issues would be
narrowed, the surviving claims would proceed, and a discovery period would be imposed. As
such, Plaintiff’s motion to deny or continue Defendants’ motions to dismiss and for summary
judgment is denied, and Plaintiff will be afforded twenty-one days from the date of this order
within which to respond to Defendants’ motion. An appropriate order follows.
14
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
GERALD A. WEST,
Plaintiff
v.
OFFICER SHULTZ, et al.,
Defendants
:
:
:
:
:
:
:
No. 1:12-cv-1004
(Judge Kane)
ORDER
AND NOW, this 27th day of September, 2013, in accordance with the accompanying
Memorandum, IT IS HEREBY ORDERED THAT:
1.
Plaintiff’s motion to amend the complaint (Doc. No. 20) is denied.
2.
Plaintiff’s motions for injunctive relief (Docs. No. 29, 37) are denied.
3.
Plaintiff’s motion to deny or to continue Defendants’ motion to dismiss and for
summary judgment (Doc. No. 44) is denied.
4.
Within twenty-one (21) days from the date of this order, Plaintiff shall file his
opposition to Defendants’ motion to dismiss and for summary judgment.
S/ Yvette Kane
YVETTE KANE, Judge
Middle District of Pennsylvania
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