Aziz v. U.S. Attorney General et al

Filing 10

MEMORANDUM AND ORDER/Order Granting Application to Proceed IFP - AND NOW, this 26th day of June, 2013, in accord. w/the accompanying memorandum, it is ORDERED that: 1. Aziz's applications 2 & 6 to proceed IFP are GRANTED...2. The Admino. Ord er 8 of 4/19/13, which required the prison to make periodic payments on the filing fee from plf.'s prison account, is vacated. 3. The Clerk of Court is to refund Aziz any portion of the filing fee rec'd. to date, approximately $49.01 . 4. Aziz's claims against the U.S. Atty. General, Thomas Decker & Warden Mary Sabol are dism'd...5. W/in 21 days of the date of this order, plf. may file an amd. complt. in this action...6. The Clerk of Court shall forward to plf. (2) copies of this Court's prisoner civil-rights complt....(See memo & order for complete details.) U.S. Attorney General, Thomas Decker and Mary Sabol terminated. Signed by Honorable William W. Caldwell on 6/26/13. (am)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
AMEER AZIZ,
Plaintiff
v.
U.S. ATTORNEY GENERAL, et al.,
Defendants

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CIVIL NO. 1:13-CV-859
(Judge Caldwell)

MEMORANDUM
I.

Introduction
Ameer Aziz is an immigration detainee in the custody of the United States

Department of Homeland Security (DHS), Immigration and Customs Enforcement (ICE).
He is currently detained at the York County Prison in York, Pennsylvania. Aziz files this
civil rights action pro se. He claims that on October 10, 2012, an unidentified dentist at the
prison extracted two of his teeth without his consent. Named as defendants are: the
Attorney General; Thomas Decker, the ICE District Director of the Pennsylvania Field
Office Detention; Mary Sabol, the prison’s warden; and PrimeCare Medical, Inc.
(PrimeCare), the contract medical provider for the prison.
Plaintiff has filed an application to proceed in forma pauperis. This
application will be granted, but in examining the complaint under 28 U.S.C. § 1915(e)(2)(B)
for legal sufficiency, we will dismiss the complaint as to all defendants except Primecare
Medical, and grant Aziz leave to file an amended complaint.

II.

Standard of Review
Under 28 U.S.C. § 1915(e)(2)(B), the court must review a complaint filed in

forma pauperis and dismiss it if it is frivolous or malicious, subsection (B)(I), fails to state a
claim on which relief may be granted, subsection (B)(ii), or seeks monetary relief against a
defendant who is immune from such relief. Id. § 1915(e)(2)(B)(iii).
In applying subsection (B)(ii), the screening requirement for failure to state a
claim, a court employs the standard used to analyze motions to dismiss under Fed. R. Civ.
P. 12(b)(6). On a Rule 12(b)(6) motion, “[w]e ‘accept all factual allegations as true,
construe the complaint in the light most favorable to the plaintiff, and determine whether,
under any reasonable reading of the complaint, the plaintiff may be entitled to relief.’”
Byers v. Intuit, Inc., 600 F.3d 286, 291 (3d Cir. 2010) (quoted case omitted).
A complaint need only contain “a short and plain statement of the claim,” Fed.
R. Civ. P. 8(a)(2), and detailed factual allegations are not required, Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964, 167 L.Ed.2d 929 (2007).
Nonetheless, a complaint has to plead “enough facts to state a claim to relief that is
plausible on its face.” Id. at 570, 550 U.S. 544, 127 S.Ct. 1955 at 1974, 167 L.Ed.2d 929.
“The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than
a sheer possibility that a defendant has acted unlawfully.” Ashcroft v. Iqbal, 556 U.S. 662,
678, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (quoting Twombly, 550 U.S. at 556,
127 S.Ct. at 1965). “[L]abels and conclusions” are not enough, Twombly, 550 U.S. at 555,
127 S.Ct. at 1964–65, and a court “‘is not bound to accept as true a legal conclusion
couched as a factual allegation.’” Id., 127 S.Ct. at 1965 (quoted case omitted).

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Pro se pleadings are held to a less stringent standard than formal pleadings
drafted by attorneys and are to be liberally construed. See Erickson v. Pardus, 551 U.S.
89, 94, 127 S.Ct. 2197, 2200, 167 L.Ed.2d 1081 (2007); Giles v. Kearney, 571 F.3d 318,
322 (3d Cir. 2009). Pro se litigants are to be granted leave to file a curative amended
complaint even when a plaintiff does not seek leave to amend, unless such an amendment
would be inequitable or futile. See Connelly v. Steel Valley Sch. Dist., 706 F.3d 209, 217
(3d Cir. 2013) (quoting Phillips v. Cnty. of Allegheny, 515 F.3d 224, 236 (3d Cir. 2008)).
However, a complaint that sets forth facts which affirmatively demonstrate that the plaintiff
has no right to recover is properly dismissed without leave to amend. Grayson v. Mayview
State Hospital, 293 F.3d 103, 106 (3d Cir. 2002).

III.

Background
Plaintiff alleges as follows. On October 10, 2012, while housed at the prison,

he was seen by an unidentified dentist. The dentist advised Aziz that one of his teeth was
broken and needed to be removed. He was also informed that another tooth had a hole in
it, could not be repaired, and also had to be extracted. Aziz agreed to the extraction of
these teeth. (Doc. 1, ECF p. 4). After administering medication to numb Aziz’s mouth, the
dentist identified two additional teeth that he suggested should be removed. (Id.) Citing no
problems with the two teeth, Aziz told the dentist not to remove those two. (Id.)
The next day, after the numbing medication wore off, Aziz discovered that the
dentist had not only removed the two teeth he had authorized to be extracted but also the
two he specifically told the dentist he wanted to keep. An exhibit attached to the complaint
indicates that Plaintiff believes that the dentist has unnecessarily extracted the teeth of
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other ICE detainees without their permission and that he is practicing “a scam o[n] aliens.”
(Doc. 1, ECF p. 10).
As relief, Plaintiff seeks damages for the loss of his two teeth, damages for
the pain and suffering caused by the dentist’s negligence, and an order requiring that any
future dental work be done by a dentist of his own choice. (Id., ECF p. 5).

IV.

Discussion
A.

Aziz’s Request to Proceed In Forma Pauperis.
As Aziz is not a “prisoner” within the meaning of 28 U.S.C. § 1915(h), 28

U.S.C. § 1915A(c) or 42 U.S.C. § 1997(h), he is not subject to the periodic payment of the
filing fee required by 28 U.S.C. § 1915(a)(2). See Agyeman v. INS, 296 F.3d 871, 885-85
(9th Cir. 2002) (filing fee provision does not apply to an alien detainee appealing a BIA
decision so long as he is also not facing criminal charges); Omosefunmi v. York Cnty.
Prison, No. 1:CV-00-2228 (M.D. Pa. Feb. 2, 2001) (Caldwell, J.) (INS detainee is not a
prisoner within the meaning of section 1915 and cannot be compelled to pay the full filing
fee installments under section 1915(b)). See also Tavares v. Attorney General, 211 F.
App’x 127, 128 n.2 (3d Cir. 2007) (nonprecedential) (immigration detainee was not a
“prisoner” so his dismissed civil-rights lawsuit could not count as a “strike” against him
under section 1915(g)). Accordingly, the court will grant Aziz leave to proceed in forma
pauperis, and without the requirement of making periodic payments of the filing fee. We
will thus vacate the Clerk of Court’s Administrative Order (Doc. 8) directing prison officials
to make periodic payments from Plaintiff’s account and order the reimbursement of any
funds already forwarded to the court pursuant to the order.
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B.

Lack of Personal Involvement of the United States Attorney
General, Thomas Decker and Mary Sabol
Plaintiff’s claim against the state defendant, Warden Sabol, arises under 42

U.S.C. § 1983. His claims against the federal DHS/ICE officer (Thomas Decker) and the
United States Attorney General arise under Bivens v. Six Unknown Fed. Narcotics Agents,
403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). Bivens actions are the federal
counterpart to § 1983 claims brought against state officials. Egervary v. Young, 366 F.3d
238, 246 (3d Cir. 2004) (citing Brown v. Phillip Morris Inc., 250 F.3d 789, 800 (3d Cir.
2001)).
Recovery under § 1983 requires proving that “a person acting under color of
state law” deprived the plaintiff of a “right secured by the Constitution and the laws of the
United States.” Kneipp v. Tedder, 95 F.3d 1199, 1204 (3d Cir. 1996) (quoting Mark v.
Borough of Hatboro, 51 F.3d 1137, 1150 (3d. Cir. 1995)). To establish personal liability
against a defendant in a section 1983 action, an individual government defendant must
have personal involvement in the alleged wrongs; liability cannot be predicated based on
the unconstitutional conduct of their subordinates under a theory of respondeat superior.
Iqbal, 556 U.S. at 676, 129 S.Ct. at 1948; Santiago v. Warminster Twp., 629 F.3d 121, 130
(3d Cir. 2010). “It is uncontested that a government official is liable only for his or her own
conduct and accordingly must have had some sort of personal involvement in the alleged
unconstitutional conduct.” Argueta v. U.S. I.C.E., 643 F.3d 60, 71-72 (3d Cir. 2011).
Personal involvement can be shown where a defendant personally directs the wrongs, or
has actual knowledge of the wrongs and acquiesces in them. See Rode v. Dellarciprete,

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845 F.2d 1195, 1207(3d Cir. 1988); A.M. ex rel. J.M.K. v. Luzerne Cnty. Juvenile Det. Ctr.,
372 F.3d 572, 586 (3d Cir. 2004) (noting that “a supervisor may be personally liable under
§ 1983 if he or she participated in violating the plaintiff's rights, directed others to violate
them, or, as the person in charge, had knowledge of and acquiesced in his subordinates'
violations”). A defendant “cannot be held responsible for a constitutional violation which he
or she neither participated in nor approved.” C.H. ex rel. Z.H. v. Oliva, 226 F.3d 198, 201202 (3d Cir. 2000).
Based on the above, Aziz fails to state a claim against Warden Sabol,
Thomas Decker or the Attorney General. Aziz does not allege their personal involvement,
or their knowledge or acquiescence, in the alleged unconstitutional behavior of the
unidentified dentist. Aside from appearing in the caption of the Complaint, Aziz only
mentions these defendants when he reports “I am currently detained here by the Attorney
General, Thomas Decker and Mary Sabol.” (Doc. 1, ECF p. 4). It is therefore apparent
that Aziz seeks to hold these defendants liable solely on the basis of their supervisory
roles. He cannot do so. Because he has failed to allege any facts showing that they were
personally involved in the underlying claim, Warden Sabol, Thomas Decker and the
Attorney General will be dismissed as parties to this action.

C.

Primecare Medical, Inc.
PrimeCare, like the public officials named above, cannot be held liable on a

theory of respondeat superior in a civil-rights action. Reichart v. Prison Health Services,
No. 11-CV-1992, 2012 WL 2411838, at *4 (M.D. Pa. June 26, 2012) (Caldwell, J.).
Instead, Plaintiff must show that he suffered a violation of his federal rights because of a
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PrimeCare policy, practice or custom. Id. Plaintiff fails to allege that PrimeCare had any
such practice, policy or custom. Hence, the civil-rights claim against PrimeCare will be
dismissed but with leave to amend his Complaint to state a claim against this defendant, if
possible.

D.

Leave to Amend
“[I]f a complaint is vulnerable to [Rule] 12(b)(6) dismissal, a district court must

permit a curative amendment, unless an amendment would be inequitable or futile.”
Phillips v. Cnty. of Allegheny, 515 F.3d 224, 236 (3d Cir. 2008). In this instance, the court
believes that any amendment for Aziz’s claims against Warden Sabol, Thomas Decker and
the Attorney General would be futile. However, it is possible that the deficiencies noted
above may be remedied by amendment as against PrimeCare. Aziz may also be able to
identify the dentist who allegedly was personally involved in extracting his two teeth against
his will.
Aziz will be granted twenty-one days to file an amended complaint. If Aziz
decides to file an amended complaint, he is advised that it must contain the same docket
number as the instant action and should be labeled “Amended Complaint.” In addition, the
"amended complaint must be complete in all respects. It must be a new pleading which
stands by itself as an adequate complaint without reference to the complaint already filed."
Young v. Keohane, 809 F. Supp. 1185, 1198 (M.D. Pa. 1992). Aziz is advised that any
amended complaint he may file supersedes the original complaint.
Aziz is also advised that his second amended complaint must be concise and
direct. See Fed. R. Civ. P. 8(d). Each allegation must be set forth in an individually
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numbered paragraphs in short, concise and simple statements. Id. The allegations should
be specific as to time and place, and should identify the specific person or persons
responsible for the deprivation of his constitutional rights and what each individual did that
led to deprivation of his rights. Ashcroft v. Iqbal, 556 U.S. 662, 676, 129 S.Ct. 1937, 1948,
173 L.Ed.2d 868 (2009). He also shall specify the relief he seeks with regard to each
claim. Aziz’s failure to file an appropriate amended complaint within the required time will
result in this action being dismissed, but without prejudice to filing any state-law claims in
state court.

/s/ William W. Caldwell
William W. Caldwell
United States District Judge

Date: June 26, 2013

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IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
AMEER AZIZ,
Plaintiff
v.
U.S. ATTORNEY GENERAL, et al.,
Defendants

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CIVIL NO. 1:13-CV-859
(Judge Caldwell)

ORDER
AND NOW, this 26th day of June, 2013, in accordance with the
accompanying memorandum, it is ORDERED that:
1. Aziz’s applications (Docs. 2 and 6) to proceed in forma
pauperis are GRANTED and, based on the financial condition
described in those applications, he may proceed in this action
without payment of any of the filing fee.
2. The administrative order (Doc. 8) of April 19, 2013, which
required the prison to make periodic payments on the filing fee
from Plaintiff’s prison account, is vacated.
3. The Clerk of Court is to refund Aziz any portion of the
filing fee received to date, approximately $49.01.
4. Aziz’s claims against the United States Attorney General,
Thomas Decker and Warden Mary Sabol are dismissed
pursuant to 28 U.S.C. § 1915(e)(2)(B)(i) for failure to state a
claim for which relief can be granted.
5. Within twenty-one (21) days from the date of this order,
Plaintiff may file an amended complaint in this action in
accordance with the foregoing Memorandum.
6. The Clerk of Court shall forward to Plaintiff two (2) copies
of this Court’s prisoner civil-rights complaint form which Plaintiff
shall use in preparing any amended complaint he may file.

7. Failure to file an amended complaint as directed within
the required time will result in dismissal of ths action, but without
prejudice to filing state-law claims in state court.

/s/ William W. Caldwell
William W. Caldwell
United States District Judge

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