Shakur v. Wetzel et al

Filing 46

ORDER (memorandum filed previously as separate docket entry) - IT IS ORDERED that Dfts' 35 MOTION to Dismiss the Complaint is GRANTED other than w/ respect to one verbal harassment claim against Dft Lehman. Signed by Honorable Yvette Kane on 12/21/15. SEE ORDER FOR DETAILED INFORMATION. (sc)

UNITED STATES DISTRICT COURT
FOR THE
MIDDLE DISTRICT OF PENNSYLVANIA
DANIEL LEWIS, also known as
NASEER SHAKUR,
Plaintiff
vs.
JOHN WETZEL, et al.,
Defendants

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No. 1:12-CV-02208
(Judge Kane)

ORDER
In accordance with the accompanying memorandum, IT IS
HEREBY ORDERED THAT:
1.

As set forth in ¶¶ 2 through 5, Defendants’ motion

to dismiss (Doc. 35) is GRANTED other than with respect to one
verbal harassment claim against Defendant Lehman which escalated
into violence and the claims against Defendant Mitchell.
2.

Lewis’s claims for damages against the Defendants,

in their official capacities are DISMISSED.1
3. Lewis’s conspiracy claims against all of the
Defendants are DISMISSED.2

1. It would be futile to allow Lewis to file a second amended
complaint with respect to the official capacity claims.
2. In light of the court’s discussion in the accompanying
memorandum, the fact that this case was filed originally over
three years ago and the fact that Lewis already has had one
opportunity to amend the complaint, the court concludes it would
be inequitable to sua sponte permit Lewis to file a second
amended complaint. See Fletcher-Harlee Corp. V. Pote Concrete
Contractors, Inc., 482 F.3d 247, 251 (3d Cir. 2007); Grayson v.
Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002). Federal
(continued...)

4.

Lewis’s verbal harassment claims other than with

respect to Defendant Lehman are DISMISSED.3
5.

Lewis’s claims against Defendants Wetzel, Bickell,

Lawler, Green, Garman, MacIntyre, Lewis, Beard, Barnacle and
Varner are DISMISSED.4
6.

Lewis’s claims against Defendants Eckard, Keller and

Corbin relating to their handling of grievances or appeals of
grievances or disciplinary proceedings are DISMISSED pursuant to
screening provisions of the PLRA without prejudice.5
7.

Lewis’s claims against Defendant Johnson are

DISMISSED pursuant to the screening provisions of the PLRA without
prejudice.6
8. Lewis’s claims against Defendants Corbin, Keller and
Eckard relating to the statement in the PRC report that he was
engaging in manipulative behavior and their denial of a transfer

2. (...continued)
Rule of Civil Procedure 15(a) provides that “[a] party may amend
it pleading once as a matter of course within [] 21 days” of
serving it or where a responsive pleading is required within 21
days of being served with the responsive pleading or a Rule 12(b)
motion. However, in all other cases the plaintiff may file an
amended complaint only with the written consent of the opposing
party or upon leave of court. Lewis after receiving Defendants’
12(b)(6) motion to dismiss did not within 21 days file a second
amended complaint.
3.

Id.

4.

Id.

5.

Id.

6.

Id.
2

to another prison is DISMISSED pursuant to the screening
provisions of the PLRA without prejudice.7
9.

Lewis’s due process claims leveled against Defendant

Mitchell are DISMISSED

pursuant to the screening provisions of

the PLRA without prejudice.8
10.

Lewis’s claims leveled against Defendants Heaster,

Cook, Lehman, Goss, Fogel, Corbin and McDermott with respect to
the alleged false misconduct reports are DISMISSED pursuant to the
screening provisions of the PLRA without prejudice.7
11.

The claims remaining are the Eighth Amendment

excessive force claims relating to the April 7, 2011, incident
involving Defendants Lehman, McDowell, McDermott and Dunkel and
the June 8, 2011, incident involving Defendants Corbin, Kyle,
Riggleman, and Fogel.

Also, the verbal harassment claim against

Lehman and Lewis’s claims under the Fourth Amendment relating to
being subjected to nude photography in October 2010, and January
2011, by Defendant Fogel remain.

S/ Yvette Kane
Yvette Kane
United States District Judge
Date: December 21, 2015

7.

Id.

8.

Id.

7.

Id.
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