McCarthy v. Ebbert et al
Filing
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MEMORANDUM re Amended Complaint 4 filed by John J. McCarthy (Order to follow as separate docket entry)Signed by Honorable William W. Caldwell on 4/24/17. (ma)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
JOHN J. McCARTHY,
Plaintiff
vs.
WARDEN EBBERT, et al.,
Defendants
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CIVIL NO. 1:CV-16-0331
(Judge Caldwell)
MEMORANDUM
I.
Introduction
The pro se plaintiff, John J. McCarthy, a former federal inmate, filed the
above-captioned civil-rights action while he was incarcerated. (ECF No. 1, Compl.)
McCarthy has filed an Amended Complaint (ECF No. 4) and a motion for leave to proceed
in forma pauperis (ECF No. 5). Plaintiff alleges several conditions-of-confinement claims
stemming from his stay at the United States Penitentiary in Lewisburg, Pennsylvania (USP
Lewisburg).
McCarthy names only Warden Ebbert and “John Doe Agents” as defendants
in his Amended Complaint. (ECF No. 4). The Amended Complaint is before the court for
preliminary screening pursuant to 28 U.S.C. § 1915A and 28 U.S.C. § 1915(e)(2)(B). Upon
screening the complaint, the court will grant McCarthy’s motion to proceed in forma
pauperis but dismiss the Amended Complaint pursuant to 28 U.S.C. § 1915(e)(2)(B) due to
Plaintiff’s failure to state a claim upon which relief may be granted against the named
defendant warden.
However, McCarthy will be granted leave to file a second amended complaint
specifically identifying the conduct of the warden showing his personal involvement with
civil-rights violations against Plaintiff. In a second amended complaint, Plaintiff shall also
identify those USP Lewisburg officials and/or medical professionals who allegedly violated
his constitutional rights by failing to protect him from assault, those who used excessive
force against him, those who denied him medical/mental health care, and those who
interfered with his legal mail. The second amended complaint shall be sufficiently specific
as to time and place and allege the conduct of each defendant that violated Plaintiff’s
rights.
II.
Standard of Review for Screening Pro Se In Forma Pauperis Complaints
When a litigant seeks to proceed in forma pauperis, without the prepayment
of fees, 28 U.S.C. § 1915 requires the court to screen the complaint. Likewise, when a
prisoner seeks redress from a government defendant in a civil action, whether proceeding
in forma pauperis or not, the court must screen the complaint. See 28 U.S.C. § 1915A(a).
Both 28 U.S.C. § 1915(e)(2)(B) and § 1915(A) give the court the authority to dismiss a
complaint if it is frivolous, malicious, fails to state a claim on which relief may be granted, or
seeks monetary relief from a defendant who is immune from such relief. See 28 U.S.C. §
1915(e)(2)(B)(i)-(iii); 28 U.S.C. § 1915A(b)(1)-(2); Ball v. Famiglio, 726 F.3d 448, 452 (3d
Cir. 2013).
A complaint is frivolous if it lacks an arguable basis either in law or fact. See
Mitchell v. Horn, 318 F.3d 523, 530 (3d Cir. 2003)(citing Neitzke v. Williams, 490 U.S. 319,
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327-28, 109 S.Ct. 1827, 1832-33, 104 L.Ed.2d 338 (1989)). In deciding whether the
complaint fails to state a claim on which relief may be granted, the court employs the
standard used to analyze motions to dismiss under Fed. R. Civ. P. 12(b)(6). See Allah v.
Seiverling, 229 F.3d 220, 223 (3d Cir. 2000). Under Rule 12(b)(6), we “must accept all of
the complaint’s well-pleaded facts as true, but may disregard any legal conclusions.”
Fowler v. UPMC Shadyside, 578 F.3d 203, 210-11 (3d Cir. 2009) (citing Ashcroft v. Iqbal,
556 U.S. 662, 678-79, 129 S.Ct. 1937, 1949-50, 173 L.Ed.2d 868 (2009)). The court may
also rely on exhibits attached to the complaint and matters of public record. Sands v.
McCormick, 502 F.3d 263, 268 (3d Cir. 2007).
A complaint must contain “a short and plain statement of the claim showing
that the pleader is entitled to relief . . .” Fed. R. Civ. P. 8(a)(2). A complaint is required to
provide “the defendant fair notice of what the . . . claim is and the grounds upon which it
rests.” Phillips v. Cty. of Allegheny, 515 F.3d 224, 232 (3d Cir. 2008) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964, 167 L.Ed.2d 929 (2007)).
To test the sufficiency of the compliant, the court “must take three steps.”
Connelly v. Lane Constr. Corp., 809 F.3d 780, 787 (3d Cir. 2016). First, a court must “take
note of the elements a plaintiff must plead to state a claim.” Id. (internal quotations and
brackets omitted). Second, the court must identify allegations that are merely legal
conclusions “because they . . . are not entitled to the assumption of truth.” Id. While
detailed factual allegations are not required, “[t]hreadbare recitals of the elements of a
cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S.
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at 678, 129 S.Ct. at 1949 (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct.
1955, 1964, 167 L.Ed.2d 929 (2007)). Third, a court should assume the veracity of all
well-pleaded factual allegations and “then determine whether they plausibly give rise to an
entitlement to relief.” Connelly, 809 F.3d at 787 (quoting Iqbal, 556 U.S. at 679, 129 S.Ct.
at 1949).
A complaint filed by a pro se plaintiff must be liberally construed and “held ‘to
less stringent standards than formal pleadings drafted by lawyers.’” Fantone v. Latini, 780
F.3d 184 (3d Cir. 2015)(citing Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 596,
30 L.Ed.2d 652 (1972)); see also Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197,
2200, 167 L.Ed.2d 1081 (2007). Yet, even a pro se plaintiff “must allege sufficient facts in
their complaints to support a claim.” Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 245
(3d Cir.2013) (citation omitted). 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 Estate of Lagano v. Bergen Cnty.
Prosecutor’s Office, 769 F.3d 850, 861 (3d Cir. 2014).
III.
Allegations of the Amended Complaint
“For a year and a half the defendants” have denied McCarthy protection from
assault by other inmates because of his legal activities. (ECF No. 4, ¶ 2). Plaintiff claims
he was assaulted six separate times while in the institution. After “most” of the assaults the
“defendants” refused to document the event or provide him medical care for his injuries.
(Id.)
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He adds that staff have told inmates he is a “rat” so his cellmate would
assault him. (Id., ¶ 13). In one instance, where staff knew inmate Roman beat his cellie to
death, SIA Sussanne Heath and Counselor Reese “and others” placed Roman in the same
cell as McCarthy. (Id., ¶ 15). Roman assaulted McCarthy twice and staff refused to
intervene. (Id.)
Later, “Heath investigated some of [Plaintiff’s] complaints,” and removed him
from the block and housed him with another inmate known to assault his cellmates. (Id.)
Again, McCarthy was assaulted several times and staff refused to intervene or place him in
protective custody. (Id.)
After McCarthy sought the assistance of the Lewisburg Prison Project, Heath
changed Plaintiff’s cell assignment. (Id.) Heath also issued him a retaliatory and false
misconduct for fighting even though he was the assault victim. (Id.) Heath later placed
another inmate, whom McCarthy refers to as an SMU program failure, in McCarthy’s cell.
That inmate also assaulted Plaintiff. (Id.) While in J Unit, McCarthy’s cellmate assaulted
him (Id., ¶ 18). Again his complaints were ignored. (Id.)
On November 30, 2015, McCarthy fell while returning from the shower
because of the pain he was suffering due to the numerous assaults he experienced. (Id.)
Rather than administering medical care, staff directed McCarthy to return to his cell. When
he fell to the floor, Hess restrained him and forced him to return to the shower area where
Hess assaulted him. (Id.) McCarthy, still in restraints, was left on the shower floor for
hours. (Id.) Later he was returned to his cell where he was assaulted again. Although
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McCarthy reported these events to medical and others, all of his requests for help were
ignored. (Id.)
When McCarthy arrived at USP Lewisburg he signed a protective custody
authorization with staff and SIA Sussanne Heath. (Id., ¶ 14). When he filed complaints for
assault and the denial of protection, “Heath misrepresented” to prison officials that
McCarthy had never signed the authorization form. (Id.)
“For a year and a half the defendants” refused to provide McCarthy with
medical and mental health care for “his serious medical needs.” For the past fifteen years
Plaintiff has taken medication for neck pain, seizures, and a variety of mental health issues.
“Doctor Edinger abruptly ceased most of his medications” because of his legal and
administrative filings. (Id., ¶ 3). Dr. Edinger and medical staff falsified medical records “to
make it appear” as if he was receiving care or that he was refusing care when offered. (Id.)
“For a year and a half John Doe Agents in each and every block” where
McCarthy was housed denied him access to the Bureau of Prisons’ administrative remedy
procedure by denying him the necessary forms or failing to address or respond to his
filings. (Id., ¶ 4). Although McCarthy wrote to the Bureau of Prisons and USP Lewisburg
administrators, as well as the U.S. Attorney, the Attorney General and “judges,” nothing
was addressed. (Id.; see also ¶ 19). Additionally, McCarthy claims the Administrative
Remedy Procedure is biased, prejudiced and useless. (Id., ¶ 7). Whenever McCarthy filed
an administrative remedy “he lost it but when in fact he should have won it.” (Id.) Staff
cover for other staff, and staff falsify facts in responding to his requests. They also do not
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provide a sufficient response and “rejected McCarthy’s remedies or claims for false or
unfair reasons or claimed they were not related claims when in fact they were.” (Id.)
Because of “this” he could not properly exhaust many issues raised in his complaint
“although he did generally exhaust many.” (Id.)
McCarthy claims that “the defendants” failed to provide him “meaningful
access to the Courts or access to the Law Library.” (Id., ¶ 11). He also claims John Doe
staff members “circumvent[ed] [his] general and legal mail”. (Id., ¶ 5). Frequently when
McCarthy sent registered mail he would fail to receive the return receipt. (Id.) McCarthy
claims courts dismissed his claims for failing to respond to court orders. (Id.) Similarly,
when Plaintiff sent legal work to the main law library to be photocopied, his legal materials
were either never received by staff or never returned to him. (Id., ¶ 6). Due to these
actions McCarthy “lost cases” and could not respond to court orders or meaningfully litigate
or appeal his conditions-of-confinement cases. (Id.) Staff also denied McCarthy access to
Money Withdrawal Forms and refused to process his in forma pauperis forms resulting in
the dismissal of many of his cases. (Id., ¶ 10).
McCarthy also alleges that “several times” he was “placed in excessively hard
tight restraints for no valid reason and placed in strip cells for several days at a time” in
violation of laws and regulations. (Id., ¶ 8). He was also assaulted by staff and denied
medical care. Plaintiff was denied due process at disciplinary hearings. (Id.) He was also
denied due process and proper placement in a Residential Re-entry Center under the
Second Chance Act in retaliation for his legal activities. (Id., ¶ 9.)
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As noted, only Warden Ebbert and John Doe Agents are named in the
caption of the Amended Complaint.
IV.
Discussion
A.
Claims Against Warden Ebbert
To successfully state a § 1983 claim, a plaintiff must allege: (1) the conduct
complained of was committed by a person acting under color of state law; and (2) the
conduct complained of deprived the plaintiff of rights, privileges, or immunities secured by
the laws or the Constitution of the United States. Rehberg v. Paulk,
U.S.
,
,
132 S.Ct. 1497, 1501, 182 L.Ed.2d 593 (2012); Barkes v. First Corr. Med., Inc., 766 F.3d
307, 316 (3d Cir. 2014).
To establish liability for the deprivation of a constitutional right, 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). This 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, 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
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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, 201-202 (3d Cir. 2000).
We note that Warden Ebbert’s name only appears in the caption of the
Amended Complaint. His name is not mentioned anywhere in the body of the complaint.
While McCarthy mentions the involvement of other individuals in some of the alleged
activities, even those allegations provide little, if any specific basis, as to alert the other
individuals as to the basis of any claims against them. Clearly, Warden Ebbert is named
strictly on a respondeat superior basis. As noted above, a plaintiff “cannot predicate liability
on her § 1983 claims on a respondeat superior basis.” Chavarriaga v. N.J. Dep’t of Corr.,
806 F.3d 210, 227 (3d Cir. 2015) (citing Rode, 845 F.2d at 1207). Because McCarthy fails
to adequately allege facts of personal involvement on the part of Warden Ebbert the
Amended Complaint against him will be dismissed. However, McCarthy will be granted
leave to file an amended complaint as to this defendant.
B.
Leave to Amend
McCarthy will be granted twenty-one days to file a second amended
complaint alleging the personal involvement of Warden Ebbert in his claims. He may also
name others he claims were involved with the alleged events. If he does not know the
names of these individuals, he may name John Does as defendants, but the case may only
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continue if a specific person is named against whom a valid claim has been alleged. If
McCarthy elects to file a second amended complaint, he is advised that he must clearly
designate on the face of the document that it is the “Second Amended Complaint,” and it
must bear the docket number assigned to this case, and it must be retyped or legibly
rewritten in its entirety, preferably on the court-approved form.
In addition, the second “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 [amended] complaint already filed.” Young v. Keohane, 809 F. Supp.
1185, 1198 (M.D. Pa. 1992). McCarthy is advised that any second amended complaint
supercedes his first amended complaint and the original complaint. McCarthy is advised
his second amended complaint must be “retyped or reprinted so that it will be complete in
itself including exhibits.” M.D. Pa. LR 15.1; see also W. Run Student Hous. Assocs. V.
Huntingdon Nat’l Bank, 712 F.3d 165, 171 (3d Cir. 2013). Consequently, all causes of
action alleged in the amended complaint which were not dismissed with prejudice and are
not alleged in the second amended complaint, are waived.
McCarthy is also advised that his amended complaint must be concise and
direct. See Fed. R. Civ. P. 8(d). Each allegation must be set forth in an individually
numbered paragraphs in short, concise and simple statements. Id. The allegations should
be specific enough 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
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led to deprivation of his rights. Iqbal, 556 U.S. at 676, 129 S.Ct. at 1948. He must also
specify the relief he seeks.
McCarthy’s failure to file an appropriate second amended complaint within the
required time will result in his lawsuit being dismissed pursuant to 28 U.S.C. §
1915(e)(2)(B)(ii) for failure to state a claim on which relief may be granted. Finally,
McCathy is cautioned that illegible submissions will be returned to him without
consideration.
An appropriate order follows.
/s/ William W. Caldwell
William W. Caldwell
United States District Judge
Date: April 24, 2017
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