Milhouse v. Heath et al

Filing 85

MEMORANDUM (Order to follow as separate docket entry) re 79 MOTION to Supplement filed by Kareem Hassan Milhouse, 82 MOTION to Seal Case filed by Kareem Hassan Milhouse, 84 MOTION to Appoint Counsel filed by Kareem Hassan Milhouse, 75 MOTION to Dismiss Party filed by Kareem Hassan Milhouse, 33 MOTION to Supplement filed by Kareem Hassan Milhouse, 78 MOTION for Leave to File filed by Kareem Hassan Milhouse Signed by Magistrate Judge Karoline Mehalchick on 6/15/2016. (cw)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
KAREEM HASSAN MILHOUSE,
Plaintiff,

CIVIL ACTION NO. 1:15-CV-01400

v.

(RAMBO, J.)
(MEHALCHICK, M.J.)

SUZANNE HEATH, et al.,
Defendants.
MEMORANDUM
The above-captioned civil rights action was initiated upon the Court’s receipt and filing
of a complaint in this matter by pro se Plaintiff Kareem Hassan Milhouse on July 20, 2015.
(Doc. 1). A second amended complaint was filed on November 24, 2015 in accordance with the
Court’s Memorandum and Order dated November 4, 2015, screening Milhouse’s amended
complaint filed as a matter of course and recommending dismissal of certain claims and
Defendants with leave to amend. (Doc. 15-1). In his second amended complaint, Milhouse
asserts a violation of the Eighth Amendment to the United States Constitution against Special
Investigative Agents Suzanne Heath and James Fosnot, Case Manager Ryan Smith, and
Supervisory Legal Advisor L. Cunningham—officials and administrators employed at the
United States Penitentiary at Lewisburg (“USP-Lewisburg”), where Milhouse is currently
incarcerated. To date, this second amended complaint is currently undergoing screening review.
Presently before the Court are a number of filings submitted by Milhouse, some of which
may potentially affect the Court’s disposition of Milhouse’s second amended complaint.
Specifically, Milhouse has filed a motion to supplement his second amended complaint, a
motion for leave to file a third amended complaint together with a proposed third amended

complaint, a motion to supplement his proposed third amended complaint, and a motion to
voluntarily dismiss a party Defendant (Doc. 75). Additionally, Milhouse has filed a motion to
seal the case (Doc. 82), and a motion to appoint counsel (Doc. 84). The Court addresses each
motion in turn.
I.

MOTIONS TO AMEND & SUPPLEMENT
Motions to amend and to supplement a complaint are both governed under Federal Rule

of Civil Procedure 15. Rule 15 provides for three ways by which a plaintiff may potentially
amend a complaint: (1) once as a matter of course; (2) with the opposing party’s written
consent; and (3) by leave of court. Fed. R. Civ. P. 15. Milhouse has previously filed an
amended complaint as a matter of right immediately after initiating this action but prior to the
Court conducting its statutorily mandated screening review of his originally filed complaint.
Accordingly, Milhouse seeks leave of court to amend his complaint for a third time pursuant to
Rule 15(a)(2), and to supplement his pleadings pursuant to Rule 15(d).
Decisions regarding motions to amend and supplement pleadings are committed to the
court’s broad discretion, and will not be disturbed absent an abuse of that discretion. See
Owens–Illinois, Inc. v. Lake Shore Land Co., 610 F.2d 1185, 1188–89 (3d Cir.1979); see also Burns v.
Exxon Corp., 158 F.3d 336, 344 (5th Cir.1998) (holding that district court did not abuse its
discretion in denying leave to file supplemental complaint). That discretion is guided by an
animating principle embodied by Rule 15: that leave should be freely given when justice so
requires. See Foman v. Davis, 371 U.S. 178, 182 (1962) (“[T]his mandate is to be heeded.”).
Consistent with the Rule’s liberal approach, leave to file an amended or supplemental
complaint should be freely permitted in the absence of undue delay, bad faith, dilatory tactics,
undue prejudice to defendants, repeated failures to correct deficiencies with previous

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amendments, or futility, and, when presented with a supplemental pleading, “where
the supplemental facts are connected to the original pleading.” Hassoun v. Cimmino, 126 F.2d
353, 361 (D.N.J. 2000) (citing Quaratino v. Tiffany & Co., 71 F.3d 58, 66 (2d Cir.1995)); Victor v.
Varano, No. 3:11-CV-891, 2012 WL 2367095, at *5 (M.D. Pa. June 21, 2012) (citations
omitted); Riley v. Taylor, 62 F.3d 86, 90 (3d Cir. 1995).
Rule 15(d) specifically addresses the submission of supplemental pleadings. It provides
that, upon motion of a party, “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). Notably, “[b]ecause it refers to
events that occurred after the . . . pleading was filed, a supplemental pleading differs from an
amendment [under Rule 15(a)], which covers matters that occurred before the filing of the . . .
pleading but were overlooked at the time.” Owens-Illinois, Inc., 610 F.2d at 1888. Indeed, “[t]he
purpose of Rule 15(d) is to promote as complete an adjudication of the dispute between the
parties as possible by allowing the addition of claims which arise after the . . . pleadings are
filed.” Green v. Nish, No. 1:12-CV-0321, 2012 WL 5509785, at *3 (M.D. Pa. Oct. 10, 2012),
report and recommendation adopted, No. 1:12-CV-321, 2012 WL 5508488 (M.D. Pa. Nov. 14,
2012) (quotation omitted).
Here, Milhouse has submitted two motions to supplement, respectively filed on
December 19, 2015 (Doc. 33), and June 6, 2016 (Doc. 79), as well as a proposed third amended
complaint, submitted on April 21, 2016. (Doc. 73).1 The Court has reviewed Milhouse’s motion

1

Milhouse filed a proposed third amended complaint on April 21, 2016. (Doc. 73). The
Court received the motion for leave to file that proposed third amended complaint on June 1,
2016. (Doc. 78).

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papers, construing them liberally. See generally Mala v. Crown Bay Marina, Inc., 704 F.3d 239,
244–46 (3d Cir. 2013).
As an initial matter, Milhouse’s December 29, 2015 motion to supplement seeks to
“supplement” the operative second amended complaint with additional factual allegations
expounding on the incidents of inmate and cellmate abuse and Defendants’ continued disregard
of Plaintiff’s high susceptibility to attack posed by double-celling him with violent inmates as
initially raised in his complaint. The crux of Plaintiff’s proposed supplemental complaint
however, concerns acts that occurred prior to Milhouse filing his second amended complaint,
the operative pleading in this action. See Moore's Federal Practice 3d § 15.30 (“Rule
15(d) applies only to events that have occurred since the date of the filing of the pleading.”).
Indeed, Milhouse merely rephrases and augments with additional details the factual allegations
set forth in his seconded amended complaint in an effort to either clarify the claims made in his
second amended complaint or assert claims he overlooked at the time of filing his second
amended complaint. Furthermore, while Milhouse includes, as an ancillary matter, vague
claims of excessive force and retaliation committed by a named Defendant subsequent to the
filing of the second amended complaint, those allegations bear no relationship to the events
forming the basis of Milhouse’s failure-to-protect claim set forth in the amended complaint and
further developed in the second amended complaint. See Nottingham v. Peoria, 709 F. Supp.
542,

544

(M.D.

Pa.

1988) (finding

that

“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 and
related to a defendant not implicated in the original complaint”). Such supplementation would
neither promote efficiency nor allow for a fuller and fairer examination of Milhouse’s claims

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against the named Defendants. While the Court would typically be inclined to construe this
motion to supplement as a motion for leave to file an amended complaint in accordance with
Rule 15(a)(2), doing so would not be advantageous to Milhouse or an effective use of judicial
resources given that, since the filing of this motion to supplement, Milhouse has filed a motion
for leave to file a third amended complaint preceding the filing of a second motion to
supplement.
With respect to Milhouse’s June 6, 2016 motion to supplement and motion to file a third
amended complaint, it appears that Plaintiff seeks to modify and condense his proposed third
amended complaint, which he is currently awaiting leave of Court to file. (Doc. 79). Indeed,
Milhouse does not assert claims of actionable conduct occurring after the filing of his second
amended complaint, as required by Rule 15(d), but rather notes in this motion to supplement
his desire “to clean up [the] language and voluntarily dismiss[ ] several defendants,” and to
proceed with this litigation using the proposed supplemental pleading as his “last standing”
third amended complaint. (Doc. 79). Milhouse’s expressed intention to consolidate his claims
and proceed on one pleading that stands by itself suggests to this Court that Milhouse seeks to
withdraw the pending proposed third amended complaint and proceed off of the supplemental
filing as his proposed third amended complaint. However, as it now stands, any attempt to
decipher Milhouse’s claims would likely require the Court to look beyond the most recent
pleading and to Milhouse’s second amended complaint, proposed third amended complaint,
and the materials appended to Milhouse’s proposed third amended complaint.
Thus, in order to simply the record, and to avoid the confusion stemming from the
numerous pleadings Milhouse has recently filed, it is submitted that the proper exercise of the
Court’s discretion at this juncture is to deny these various motions to file amended and

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supplemental complaints (Doc. 33; Doc. 78; Doc. 79), and permit Milhouse to file one, allinclusive third amended complaint in accordance the Court’s November 4, 2015 Memorandum
and Order. This approach is consistent with the guiding principle which informs the exercise of
the Court’s discretion in managing its docket, which is “to make pleadings a means to achieve
an orderly and fair administration of justice.” Griffin v. Cnty. Sch. Bd. of Prince Edward Cnty., 377
U.S. 218, 227 (1964).
Accordingly, Milhouse will be directed, within thirty (30) days of the date of this Order,
to file a third amended complaint that is complete in all respects. Milhouse is instructed that
this amended pleading must “be a new pleading which stands by itself as an adequate
complaint without reference to [any pleadings] already filed.” Young v. Keohane, 809 F. Supp.
1185, 1198 (M.D. Pa.1992). See e.g., Biggins v. Danberg, No. 10–732, 2012 WL 37132 (D. Del.
Jan. 6, 2012); Quirindongo v. Fed. Bureau of Prisons, No. 10–1742, 2011 WL 2456624 (M.D. Pa.
June 16, 2011). Milhouse’s third amended complaint must recite factual allegations sufficient to
raise the plaintiff's claimed right to relief beyond the level of mere speculation; contain “a short
and plain statement of the claim showing that the pleader is entitled to relief,” Fed. R. Civ. P.
8(a)(2); set forth averments that are “concise, and direct,” Fed. R. Civ. P. 8(e)(1); and state such
averments in separately numbered paragraphs describing the date and time of the events alleged
and identifying wherever possible the participants in the acts about which he complains. This
third amended complaint must resolve the shortcomings identified by the Court in its
November 4, 2015 Memorandum and Order and include the sufficiently pled Eighth
Amendment failure-to-protect claim against Special Investigative Agents Suzanne V. Heath and
James Fosnot, and Case Manager Ryan Smith. Consequently, all previously asserted causes of
action omitted from the forthcoming amended complaint will be waived.

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II.

MOTION TO VOLUNTARILY DISMISS DEFENDANT RYAN SMITH
Additionally pending before this Court is a motion to voluntarily dismiss Defendant

Ryan Smith from the above-captioned action. (Doc. 75). 2 This motion was filed on May 9,
2016. (Doc. 75). In this motion, Milhouse reveals that he mistakenly filed virtually identical
claims against Defendant Ryan Smith in another action pending before this Court and thus,
wishes to dismiss this Defendant from this action in order to continue pursuing the claims
against him in the other action. (Doc. 75).
Voluntary dismissal of the entire action is governed by Rule 41(a)(1). Rule 41(a)(1)
“allows a plaintiff who complies with its terms to dismiss an action voluntarily and without
court intervention.” Manze v. State Farm Ins. Co., 817 F.2d 1062, 1065 (3d. Cir. 1987).
Specifically, Rule 41(a)(1) provides, in relevant part:
[T]he plaintiff may dismiss an action without a court order by filing . . . a notice
of dismissal before the opposing party serves either an answer or a motion for
summary judgment. . . . Unless the notice or stipulation states otherwise, the
dismissal is without prejudice. But if the plaintiff previously dismissed any
federal- or state- court action based on or including the same claim, a notice of
dismissal operates as an adjudication on the merits.
Fed. R. Civ. P. 41(a)(1).
Conversely, “[i]t is clear that in the Third Circuit when, as here, a plaintiff wishes to
dismiss his entire claim against one of several defendants, Rule 41(a)(2) properly applies.”
Plasterer v. Hahn, 103 F.R.D. 184, 185 (M.D. Pa. 1984) (citing Young v. Wilky Carrier Corp., 150
F.2d 764 (3d Cir. 1945)). Rule 41(a)(2) provides, in relevant part, that “[e]xcept as provided in
Rule 41(a)(1), an action may be dismissed at the plaintiff’s request only by court order, on terms

2

Curiously, Milhouse now attempts to dismiss from this action a Defendant that he
initially offered sufficient factual allegations to support a failure-to-protect claim against in his
amended complaint.

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that the court considers proper. . . . Unless the order states otherwise, a dismissal under this
paragraph (2) is without prejudice.” Fed.R.Civ.P. 41(a)(2).
Here, while the Court would typically be inclined to recommend dismissal of this
Defendant without prejudice pursuant to Rule 41(a)(2), a more conservative approach is
warranted at this juncture in the proceedings. Specifically, it has come to the Court’s attention
that Milhouse has advanced duplicative claims in virtually identical terms against this
Defendant in Milhouse v. Samuals, Civil No. 1:15-cv-1644, but that Milhouse v. Samuals, Civil
No. 1:15-cv-1644 has been recommended for dismissal as of April 29, 2016 pursuant to the
“first-filed” rule. Thus, it appears that, through this motion, Milhouse attempts to avoid
dismissal of Milhouse v. Samuals, Civil No. 1:15-cv-1644, by moving for voluntary dismissal of
his claims against Defendant Ryan Smith in this action, a strategic decision that may prove
unsuccessful. More importantly, the Court observes that Milhouse’s June 6, 2016 motion to
supplement his pleadings includes claims asserted against Defendant Ryan Smith, signifying to
this Court that Milhouse has reconsidered voluntary dismissal of Defendant Ryan Smith from
the above-captioned action. Accordingly, the Court will deny Milhouse’s motion to voluntarily
withdraw Defendant Ryan Smith from this action (Doc. 75), and await the submission of
Milhouse’s third amended complaint. Should Milhouse choose to forgo his claims against
Defendant Ryan Smith, he may do so through the filing of a third amended complaint that
omits any reference to Defendant Ryan Smith. Conversely, should Milhouse decide to continue
litigating his claims against Defendant Ryan Smith, he may do so by asserting such claims in
his forthcoming third amended complaint.

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III.

MOTION TO SEAL
Milhouse has filed a motion to seal on June 6, 2016, in which he urges the Court to seal

the entire docket to prevent public access and inspection of his filings through PACER because
he fears that “once Lewisburg defendants receive copies of the present supplemental complaint,
Plaintiff’s danger will be enhanced” should certain inculpatory statements contained within his
pleadings be disseminated throughout the prison population, placing him at risk of assault.
(Doc. 82). 3 It is well established that there is a common law presumption of public access to
judicial records. See In re Cendant Corp., 260 F.3d 183, 194 (3d Cir. 2001); Miller v. Indiana Hosp.,
16 F.3d 549, 551 (3d Cir. 1994). In order to overcome this presumption of a public right of
access, “[t]he party seeking to seal any part of a judicial record bears the heavy burden of
showing that ‘the material is the kind of information that courts will protect’ and that
‘disclosure will work a clearly defined and serious injury to the party seeking closure.’” Miller,
16 F.3d at 551 (quoting Publicker Indus., Inc. v. Cohen, 733 F.2d 1059, 1071 (3d Cir. 1984)). “A
party who seeks to seal an entire record faces an even heavier burden.” Miller, 16 F.3d at 551.
“Broad allegations of harm, bereft of specific examples or articulated reasoning, are
insufficient.” Cendant, 260 F.3d at 194.
While Milhouse has furnished the Court with representations of a perceived threat
derived from the allegations contained within his pleadings sufficient to justify sealing certain
filings, the articulated prospect of such harm, alone, does not warrant the preemptive sealing of
the entire case record and all future filings. Indeed, Milhouse fails to articulate why a less

3

The Court notes that it has provided only such detail as is necessary to describe
Milhouse’s potential claims, as it appreciates the institutional safety concerns that may be
potentially implicated by nature of Milhouse’s allegations contained within his pleadings.

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restrictive alternative to wholesale sealing is unavailable to him that would adequately protect
his interests, thereby necessitating sealing the entire case from public inspection under a blanket
order. It appears to this Court that the appropriate course of action is to require Milhouse to
narrowly tailor his motion to seal by identifying specific documents containing the confidential
information that, if disclosed, would result in a clearly defined and serious injury. Accordingly,
Milhouse’s motion to seal the entire record of this case (Doc. 82), will be denied without
prejudice to the filing of a renewed motion to seal that identifies the particular documents
Milhouse seeks to prevent the public from accessing.
IV.

MOTION TO APPOINT COUNSEL
As a final matter, Milhouse has filed a motion to appoint counsel. (Doc. 84). In this

motion, Milhouse argues that appointment of counsel is warranted due to the restrictions
placed on his access to legal materials and prison officials’ interference with his outgoing mail.
Although prisoners have no constitutional or statutory right to appointment of counsel
in a civil case, Parham v. Johnson, 126 F.3d 454, 456-57 (3d Cir. 1997), the court has discretion
to request “an attorney to represent any person unable to afford counsel.” 28 U.S.C. §
1915(e)(1); see also Montgomery v. Pinchak, 294 F.3d 492, 499 (3d Cir. 2002); Tabron v. Grace, 6
F.3d 147, 153 (3d Cir. 1993). Under § 1915(e)(1), the “court may request an attorney to
represent any person unable to employ counsel. The district court’s appointment of counsel is
discretionary and must be made on a case-by-case basis. Tabron, 6 F.3d at 157-58.
The United States Court of Appeals for the Third Circuit has stated that appointment of
counsel for an indigent litigant should be made when circumstances indicate “the likelihood of
substantial prejudice to him resulting, for example, from his probable inability without such
assistance to present the facts and legal issues to the court in a complex but arguably

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meritorious case.” Smith-Bey v. Petsock, 741 F.2d 22, 26 (3d Cir. 1984). The initial determination
to be made by the court in evaluating the expenditure of the “precious commodity” of volunteer
counsel is whether the plaintiff’s case has some arguable merit in fact and law. Montgomery, 294
F.3d at 499. If a plaintiff overcomes this threshold hurdle, other factors to be examined are:
(1) the plaintiff’s ability to present his or her own case; (2) the difficulty of the
particular legal issues; (3) the degree to which factual investigation will be
necessary and the ability of the claimant to pursue investigation; (4) the plaintiff’s
capacity to retain counsel on his or her own behalf; (5) the extent to which the
case is likely to turn on credibility determinations; and (6) whether the case will
require testimony from expert witnesses.
Montgomery, 294 F.3d at 499 (citing Tabron, 6 F.3d at 155-57).
Additionally, another practical consideration must be taken into account when considering a
motion for appointment of counsel. As the Third Circuit has observed:
… we must take note of the significant practical restraints on the district courts’
ability to appoint counsel: the ever-growing number of prisoner civil rights
actions filed each year in the federal courts; the lack of funding to pay appointed
counsel; and the limited supply of competent lawyers who are willing to
undertake such representation without compensation. We have no doubt that
there are many cases in which district courts seek to appoint counsel but there is
simply none willing to accept appointment. It is difficult to fault a district court
that denies a request for appointment under such circumstances.
Tabron v. Grace, 6 F.3d 147, 157 (3d Cir. 1993).
As a threshold matter, the Court notes that Milhouse has asserted a failure-to-protect
claim that survived the Court’s initial screening review. Nevertheless, the Court finds the
appointment of counsel to represent Milhouse in this matter to be unnecessary. Despite his
incarceration, Milhouse has demonstrated an ability to adequately present his own case as
evidenced by his pleadings and motion papers submitted thus far. Further, investigation of the
facts does not seem beyond Milhouse’s capabilities. The legal issues presented in this case are
not complex, and will not require expert testimony. The Court’s duty to construe pro se

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pleadings liberally, coupled with the Milhouse’s apparent ability to litigate this action, weigh
against the appointment of counsel. See Haines v. Kerner, 404 U.S. 519 (1972). Thus, Milhouse’s
motion for appointment of counsel will be denied. If further proceedings demonstrate the need
for counsel, the matter will be reconsidered either sua sponte or upon motion of Plaintiff.

An appropriate Order follows.

s/ Karoline Mehalchick

Dated: June 15, 2016

KAROLINE MEHALCHICK
United States Magistrate Judge

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